Rajesh Kumar Trivedi vs State of M.P.

S.S. Dwivedi, J.

Appellant has preferred this appeal u/s 374 (2) of the Code of Criminal Procedure feeling aggrieved by the judgment of conviction and order of sentence dated 7-4-2005 passed by First Additional Sessions Judge and Special Judge, Gwalior (MP) in Special Case No. 4/2002, whereby the appellant/ accused being a Public Servant has been found guilty under sections 7 read with 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act" in brevity) and sentenced to one year RI with a fine of Rs. 2500/- on each count and in default of payment of fine, further ordered to suffer imprisonment for one month and both the sentences are also ordered to run concurrently.

It is an admitted fact that at the relevant time, the appellant/accused was posted as Regional Transport Officer at Morena as a Public Servant.

Briefly stated facts of the case are that on 26-5-2001 and on 27-5-2001 the appellant/accused was posted as Regional Transport Officer at Morena. Complainant Harishankar Singh was the private bus operator and he was plying a bus from Gwalior to Morena and Gwalior to Gohad on permanent permit. The registration no. of the concerning bus is MP 06 B-6552. It was also the case of the prosecution that one Jahur Khan had also obtained a new permit for plying the passenger bus from Gwalior to Gohad 10 minutes before the complainant''s bus on the aforesaid permit and against the grant of the aforesaid permit, complainant Harishankar had filed an appeal before the Regional Transport Commissioner and thereafter, revision before the State Transport Appellate Tribunal, Gwalior. Before the Appellate Tribunal, a compromise petition had been filed by both the parties namely complainant Harishankar Singh and second bus operator Jahur Khan and both of them had agreed to change the timings of the bus belonging to Jahur Khan. On this compromise petition, the learned State Transport Appellate Authority had ordered for necessary amendment in the time table of the bus belonging to Jahur Khan and the Transport Commissioner had further directed the Regional Transport Officer, Morena for necessary amendment in the time table as per the compromise petition. For necessary amendment in the concerning time table, complainant Harishankar Singh contacted the appellant/accused, who at the relevant time was working as R.T.O., Morena, for necessary amendment in the permit belonging to Jahur Khan and it is alleged that for necessary amendment in the time table, the appellant/ accused had demanded illegal gratification of Rs. 3000/- from the complainant Harishankar Singh. Against this illegal demand of bribe, the complainant Harishankar had contacted the Special Police Establishment, Lokayukt office, Gwalior and lodged a written report for the alleged illegal act of the appellant/ accused and the concerning, D.S.P., Lokayukt had taken necessary steps for the proposed trap of the appellant/ accused. Phenolphthalein powder was spread on the currency notes of Rs. 3000/- and it was handed over to the complainant Harishankar for its delivery to the appellant/ accused and necessary Panchnama was also prepared. On 26-5-2001 when the trap party reached at the house of the appellant/accused, he was not there. Therefore, again the trap party went at the house of the appellant/ accused on 27-5-2001, at that time it is alleged that the complainant Harishankar had given the bribe money of Rs. 3000/-to the appellant/accused who had put it on the top of the table of the room concerned. Thereafter, the complainant had made certain sign to the trap party. At that time, the concerning Investigating Officer Ramlakhan Bhadoria with two independent witnesses entered into the room and seized the currency notes of Rs. 3000/- from the top of the table concerned. Necessary seizure memo was prepared and hands of the appellant/ accused were washed in the mixture of sodium carbonate powder then water color turned into pink and then pink colored water was preserved in the clean bottle for its examination by the laboratory concerned. Necessary Panchnama was prepared. Thereafter, the trap party returned back to the office and registered a case u/s 7 read with 13(1) (d) and 13 (2) of the PC Act against the appellant/accused. He was arrested and released on bail. Thereafter, pink color sodium carbonate water was sent to the FSL for its examination from where the necessary report was received wherein necessary phenolphthalein powder was found proved.

Thereafter, during investigation, the necessary prosecution sanction was obtained from the Head of the department concerned and charge sheet was filed before the Special Judge, Gwalior. The appellant/ accused abjured the guilt and his defense was of false implication in this case due to some enmity with the complainant Harishankar Singh.

The learned trial court after taking the required evidence produced by the prosecution by its impugned judgment dated 7-4-2005 held the appellant/ accused guilty for the offence u/s 7 read with 13 (1) (d) and 13 (2) of the PC Act and sentenced him as mentioned hereinabove; feeling aggrieved by which, the appellant/accused has preferred this appeal.

Having heard the learned counsels for the parties, perused the record.

Learned senior counsel Shri Surendra Singh appearing on behalf of the appellant/ accused challenged the impugned judgment of conviction and order of sentence mainly on two grounds. Firstly that the demand of bribe money by the accused as stated by the complainant has not been corroborated by the independent witnesses, therefore, the demand of bribe is not proved by the prosecution by cogent evidence. Similarly, it is also submitted by learned counsel for the appellant that the seizure of the bribe money is also not from the personal search of the appellant/ accused but this had been seized from the top of the another table which was lying in the same room. Therefore, it is also not proved that any bribe money has been seized from the conspicuous possession of the appellant/ accused and on the table concerned, the bribe money can easily be planted by the complainant who is having personal enmity with the appellant/ accused. Similarly, it is also stressed by learned Sr. counsel for the appellant that the presence of the phenolphthalein powder on the hands of the appellant/ accused is also not conclusive proof of the fact that the concerned bribe money has been received by the appellant/ accused from the complainant. Before the hand-wash of the appellant/ accused, the hands of the police constable who had caught the appellant accused''s hands had not been washed and this phenolphthalein powder can also be easily planted at the time when the appellant/ accused was caught by the concerning police constable. Therefore, the presence of the phenolphthalein powder on the hands of the appellant/ accused is also not proved beyond reasonable doubt.

It is also submitted by learned Sr. counsel for the appellant that the presence of the alleged witnesses Ramashankar in the room concerned also appears to be doubtful and on the circumstantial evidence and on the basis of admission of that Ramashanakar it is also proved that he is closely related and interested witness of the complainant Harishankar, therefore, his statement can also not be believed. It is also submitted by learned Sr. counsel that the demand of Rs. 3,000/- as bribe money by the appellant/ accused is also not found proved by the trial court itself as discussed in para 40 of the impugned judgment. It is further submitted that Panch witnesses as have been produced by the prosecution are also interested witness and pocket witness of the prosecution. Both of these witnesses namely V.K. Sharma (PW-2) and S.L. Katiyar (PW-5) admitted the fact that before this incident they have been made witnesses by the Lokayukt Police Establishment several times, therefore, these two witnesses also do not appear to be independent witnesses and can not be relied upon for the alleged seizure of the bribe money from the room belonging to the appellant/ accused.

Learned counsel for the appellant specifically stressed on the fact that even demand of bribe money has not been proved by the independent witnesses and the seizure of the bribe money from the conspicuous personal possession of the appellant is also not proved then merely on the basis of presence of the phenolphthalein powder, the appellant/ accused cannot be held guilty for any demand of money or its acceptance and the trial court has wrongly held the appellant/ accused guilty. Hence, prayed for setting aside of the impugned judgment of conviction and order of sentence passed by the trial court.

In reply, the learned Panel Lawyer for the State as well as the counsel appearing on behalf of the complainant supported the impugned judgment of conviction and order of sentence and submitted that the demand of bribe money by the appellant/ accused is proved on the basis of statement of the complainant and on the basis of the written complaint lodged by the complainant. Similarly, the seizure of the bribe money is also proved by the statement of the complainant Harishankar, independent witnesses Ramashankar and two other Panch witnesses namely V.K. Sharma (PW-2) and S.L. Katiyar (PW-5) and on the basis of statement of the Investigating Officer Ramlakhan Singh Bhadoria (PW-12), and if the demand of bribe money and its acceptance, the recovery of the bribe money and the presence of the phenolphthalein powder on the hands of the appellant/ accused is fully proved by the prosecution, in such case, the learned trial court has rightly come to the conclusion for holding the appellant/ accused guilty for the aforesaid offence and no substantial grounds are available for any interference in the impugned judgment of conviction and order of sentence. Hence, prayed for dismissal of the appeal.

First point for consideration before this Court as to whether the prosecution has proved the demand of bribe money by the appellant/ accused by cogent evidence or not?.

For this purpose, the prosecution has examined the complainant Harishankar (PW-6) who stated that as per the order passed by the State Transport Appellate Authority and the order and direction given by the Transport Commissioner, the necessary amendment in the time table of the bus belonging to Jahur Khan has to be acted upon and for that purpose, the appellant/ accused being Regional Transport Officer at Morena had demanded Rs. 30007- as bribe money from him, for which he had lodged the written complaint against the appellant in the Lokayukt Police which is Ex. P/2. In cross-examination in para 30, the complainant has admitted this fact that necessary amendment in the time table was to be done in the permit belonging to Jahur Khan and till the date of the complainant, Jahur Khan had also not submitted his original permit for necessary amendment in the time table of his bus as per the compromise in between the parties and the amendment in the time table is not acted upon in his bus permit. He has also admitted the fact that when the appellant/ accused had demanded the alleged bribe money of Rs. 3000/- for necessary amendment in the time table of the bus permit of Jahur Khan. Nobody was present as shadow witness for proving of this demand. He also admitted that no tape record was provided by the Lokayukt Police to record the conversation of the appellant/ accused with regard to the demand of aforesaid Rs. 3000/- from the complainant.

Thus, on perusal of the total statement of the complainant, the submission made by the learned Sr. counsel for the appellant is found to be having much force that there is no supporting evidence available on record for the statement of the complainant Harishankar (PW-6) that the appellant/ accused has demanded any bribe of Rs. 3000/- and the Special police has also not produced tape version of the appellant/ accused and complainant and has also not produced any shadow witness for the alleged demand of bribe money.

Similarly, on perusal of the statement of the complainant Harishankar (PW-6) in which he stated about delivery of the bribe money that after receipt of the bribe money, the appellant/ accused had handed over it to his servant Ramshankar; who thereafter put this bribe money of Rs. 3000/- on the top of the another table under a bag and thereafter the trap party entered into the room concerned and the concerning investigating officer had asked from the appellant/ accused with regard to the whereabouts of the bribe money, then the bribe money had been recovered from the top of the table which was lying under a bag concerned and that had not been recovered from the pocket of the appellant/ accused. In view of the aforesaid admission of the complainant Harishankar (PW-6) it is clear that the bribe money had also not been recovered from the personal possession of the appellant/ accused and this had been recovered from the top of the table which was lying under a bag. This fact has also been proved by the other witnesses namely V.K. Sharma (PW-2) and S.L, Katiyar (PW-5) that the concerning bribe money has been seized from the top of the table concerned and if the fact being so that recovery of the bribe money is not from the personal possession of the appellant/ accused, that has been seized from the top the table can easily be planted by any person. In such case also, merely en the basis of recovery of the bribe money from the table in the room concerned that will also create doubt about the sanctity of the statement given by the prosecution witnesses with regard to the acceptance of the bribe money by the appellant/ accused and for this, the learned Sr. counsel of the appellant/ accused placed reliance on the decision of the Apex Court reported in the case of V. Venkata Subbarao Vs. State, represented by Inspector of Police, A.P., , wherein the Lordship of the Supreme Court held:

Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under:

Presumption where public servant accepts gratification other than legal remuneration - (1) Where, in any trial of an offence punishable u/s 7 or section 11 or clause (a) or clause (b) or sub-section (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.

Similarly, the learned Sr. counsel for the appellant/ accused also placed reliance on the decision of the Apex court reported in the case of Panalal Damodar Rathi Vs. State of Maharashtra, , wherein the Apex Court held in the circumstances where the corroboration of the complainant''s statement is not available with regard to the demand of bribe by the appellant/ accused. In such circumstances it is held :-

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

Same view has also been taken by this Court in the case of Jagdish Chandra Makhija v. State of MP 1990 MPLJ 239, wherein it is held that "if the statement of the complainant with regard to the demand of bribe has not been corroborated by the independent witness then the sole statement of the complainant without corroboration cannot be accented". In the aforementioned cases, the Apex Court has disbelieved the statement of the complainant with regard to the demand of bribe by the appellant/accused without independent corroboration. As in the present case also, the corroboration with regard to the demand of bribe by the independent witness is not available.

Similarly, the learned Sr. counsel for the appellant also placed reliance on the decision of the Apex Court reported in the case of Ayyasami Vs. State of Tamil Nadu, , in this case also, the Apex Court laid down that "if independent evidence with regard to the demand of dowry for the statement of the complainant is not available then the conviction cannot be based on the sole statement of the complainant". Similar view has also been taken by the Apex Court report in the case of Som Parkash Vs. State of Punjab, , wherein due to lack of the corroborating independent witness, the appellant/ accused has been acquitted from the charge under the PC Act.

Similarly, learned Sr. Counsel for the appellant has also submitted that both the Panch witnesses namely VK. Sharma (PW-2) and S.L. Katiyar (PW-5) accepted in cross examination that before this case, they were also called as Panch witness in some other trap case and in view of that admission, it is submitted that both these witnesses are pocket witness of the Lokayukt Establishment and cannot be found to be independent witness. Hence, their statement for whole process of the trap cannot be solely accepted and for this contention, the learned counsel for the appellant also placed reliance on the decision of Apex court reported in the case of Raghbir Singh Vs. State of Punjab, , wherein it is held by the Apex Court as under:

The prosecution case also suffers from another serious infirmity and it is that it rests entirely on the evidence of witnesses who are either interested witnesses or police witnesses. Jagdish Rai was clearly an interested witness because he was concerned in laying the trap for the appellant. Arjun Das was also an interested witness as he was a relative of Jagdish Rai. Jagdish Rai admitted in his evidence that Arjun Das was his relative and so did Arjun Das. It is a little interesting to know that Arjun Das was not secured as a witness to the raid by Inspector Hardas Singh. He was picked up by Jagdish Rai when he was going to meet his sister in Putlighar and taken to the Special Enquiry Agency. His evidence was that he had taken leave on that day from his work as he wanted to meet his sister. But curiously enough, he allowed himself to be persuaded to go as a witness of the raid and even after the raid was over at about 3 p.m. he did not go to meet his sister in Putlighar. It appears to us extremely improbable that Arjun Das was really going to meet his sister when he was diverted by Jagdish Rai and taken as a member of the raiding party. If that was the mission for which he had taken leave, he would not have gone with Jagdish Rai and even if he did, he would have gone to meet his sister after the raid was over. It seems to us that Arjun Das had taken leave for the purpose of assisting Jagdish Rai in arranging the raid and he was clearly and indubitably and interested witness. Now it is significant that the only two persons who witnessed the actual passing of bribe were Jagidsh Rai and Arjun Das. Inspector Hardas Singh knew very well that Arjun Das was brought by Jagdish Rai and presumably he was connected with Jagdish Rai and could not, therefore be regarded as an independent person, even so he did not care to secure an independent person to act as a witness of the raid. In fact, one Mohan Lal had acted as a witness when Jagdish Rai gave information to Inspector Hardas Singh in regard to the demand for bribe made by the appellant and though he was an independent person he was not taken as a witness by Inspector Hardas Singh when the latter went for the purpose of the raid. Instead, one Makhan, who was a sweeper in the whole time employment of the police was taken as a witness. But, even he was not sent along with Jagdish Rai to witness the passing of the bribe. It is indeed difficult to see how Makhan could possibly be regarded as an independent witness. It is indeed a sad commentary on the functioning of the anti-corruption department in this case that the only safeguard against false implication in the offence of bribery which is provided by the presence of independent and respectable witnesses was completely ignored and two witnesses were taken one of whom was a relative of Jagdish Rai and the other a sweeper in the whole time employment of the police. We must take this opportunity of impressing on the officers functioning in the anti-corruption department to insist on observing this safeguard as zealously and scrupulously as possible for the protection of public servants against whom a trap may have to be laid. They must seriously endeavor to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe.

As stated herein-above, the bribe money has been recovered from the top of the table which can easily be planted by the complainant without knowledge of the appellant/ accused. In such case also, the acceptance of the bribe of the appellant/ accused has not been found proved and for this, the counsel for the appellant placed reliance on the decision of the Apex Court reported in the case of M.K. Harshan Vs. State of Kerala, , wherein the Apex court held that "when tainted money has been recovered from drawer of the table belonging to the appellant/ accused; that can easily be planted without knowledge of the appellant/ accused". In such circumstance, the appellant/ accused has been given benefit of doubt and "the acceptance of the bribe money by the appellant/ accused has not been found proved."

Similar view has again taken by the Apex court report in the case of State of Andhra Pradesh Vs. T. Venkateswara Rao, and it is held that "if appellant/ accused is not having any work due with him, hence no motive for illegal demand of gratification arises. Similarly, if recovery of bribe money is not from the personal possession of the appellant/accused but from the house belonging to the appellant/ accused then the offence for alleged demand of bribe and its acceptance is not found proved and judgment of acquittal has been affirmed".

The same is the situation of the present case also that all three witnesses namely Harishankar (PW-6), alleged Panch witnesses V K. Sharma (PW-2) and S.L. Katiyar (PW-5) accepted the fact that bribe money has been recovered from the top of the table and not from the person of the appellant/ accused. In such circumstance, the aforesaid law laid down by the Apex court is fully applicable to the facts of the present case also.

Similarly, the Apex Court in another case reported in the case of Smt. Meena Hemke Vs. The State of Maharashtra, again reiterated the fact that "if the bribe money has not been recovered from the possession of the appellant/ accused; this has been recovered from the room concerned and there is reasonable explanation for presence of the phenolphthalein powder from the hands of the appellant/ accused. In such case, the appellant/ accused cannot be held guilty for acceptance of the bribe money from the complainant".

The same are the facts of the present case also, it is on record that both the constables had caught the hands of the appellant/ accused in the room concerned and thereafter on washing of the hands, the presence of the phenolphthalein powder has been found and before that, no Panchnama has been prepared with regard to washing of the hands of the concerning constables and both the constables had also not admitted the fact that before they caught the hands of the appellant/ accused, their hands had also been washed in the room concerned. In such circumstance, the phenolphthalein powder can also be planted on the hands of the appellant/ accused and for the presence of phenolphthalein powder on the hands of the appellant / accused has been explained properly and in view of that, only on the basis of presence of the phenolphthalein powder, it cannot be presumed that the appellant/ accused has accepted the bribe money from the complainant.

Same view has also been taken by this court reported in the case of Khanju Prasad Ladiya Vs. State of M.P., , in this case, the recovery of the bribe money is from a bag lying on the cot belonging to the appellant/ accused and on the basis of recovery of bribe money from the bag concerned, the presumption u/s 41 of the PC Act will not arise and merely on the basis of such type of recovery of money, the appellant/ accused is not held to be guilty for the alleged demand of bribe and its acceptance".

It is further submitted by learned Sr. counsel for the appellant that as stated herein above, the concerning Jahur Khan had not filed his original permit for necessary amendment in the time table. Unless he filed the aforesaid permit then only the appellant/ accused can amend the time table as directed by the appellate authority and if Jahur Khan concerned had not filed his permit for necessary amendment, in such case, no work was pending before the appellant/ accused for which he was having any motive for demand of illegal gratification from the complainant. It is also submitted that after this trap case, till now there was ho amendment in the time table of Jahur khan''s permit and if no motive for obtaining any illegal gratification is proved by the prosecution, then also the appellant/ accused cannot be held guilty for any demand of bribe or its acceptance. For this contention, the learned Sr. counsel for the appellant also placed reliance on the decision of this Court reported in the case of K. Sundar Raj v. State of MP 2006 (4) MPHT 349, wherein it is held that "if no work is pending with the appellant/accused, in such circumstance, no motive to obtain illegal gratification is proved and the appellant/ accused cannot be held guilty for demand of bribe or its acceptance".

Now remained the only statement of one Ramashankar (PW-10) against whom it is alleged that he was the personal servant of the appellant/ accused, who had put the bribe money on the table under the bag concerned and for that witness, it is submitted by learned Sr. counsel of the appellant that he is closely related with the complainant Harishankar Singh (PW-6). A joint application had been filed before the trial court for granting of further date for the statement of Harishankar and this Ramashankar as they both went together to Haridwar. This circumstance clearly shows that Ramashankar is the pocket witness of the complainant Harishankar. The same is the statement of another defense witness namely Ramroop alias Jhhabbe (DW-6) who clearly stated that Ramashanker was previously working with Harishankar (PW-6) as his bus agent. The same is the statement of Brijkishore Sharma (DW-4) and Ramesh Pandey (DW-2) also. All these witnesses clearly stated that the witness Ramashankar (PW-10) was being paid by the complainant Harishankar (PW-6) and if that being so, the complainant Harishankar can easily plant the bribe money by the witness Ramashankar on the table of the concerning room and after that, that money has been recovered as bribe money by the seizing officer concerned. In such circumstance, the acceptance of bribe money by the appellant on the basis of statement of Ramashankar (PW-10) cannot be believed totally and the money had not been recovered from the personal possession of the appellant/ accused.

The Panch witnesses VK. Sharma (PW-2) and S.L. Katiyar (PW-5) in their statement proved the necessary formalities for spreading the phenolphthalein powder in the concerning currency note of Rs. 3000/- and thereafter the seizure of the bribe money from the top of the table in the room concerned.

As discussed in detail herein above, only on the basis of recovery of bribe money, the acceptance of the bribe money by the appellant/ accused cannot be found proved beyond reasonable doubt. Therefore, on the basis of this recovery of the bribe money, the appellant/ accused cannot be held guilty for its acceptance of the bribe from the complainant concerned.

Learned counsel for the complainant while supporting the impugned judgment of conviction and sentence passed by the trial court submitted that the prosecution has fully proved the charge against the appellant by cogent evidence and in such circumstance, no interference is called for in the impugned judgment and in support of his contention, the learned counsel for the complainant placed reliance on the decisions of the Apex Court reported in the cases of G.L. Raval v. State of Gujarat 2004 SCC (Cri) 1461; State of A.P. v. K. Punardana Rao 2004 SCC (Cri) 1908; Biranchi Narayan Mohanty v. State of Orissa 2002 SCC (Cri) 562; M. Narsinga Rao v. State of Andhra Pradesh 2001 Cri. L.R. (SC) 102; Ramesh Kumar Gupta Vs. State of Madhya Pradesh, ; Rup Singh Vs. The State of Punjab, and C.K. Damodaran Nair Vs. Govt of India, . In all these cases, the Apex Court found the prosecution evidence believable and in such circumstances, the conviction and sentence passed by the trial court for the offence punishable under the PC Act has been upheld.

As discussed in detail hereinabove, in the present case, the demand of bribe money by the appellant/ accused and its acceptance is not proved. beyond reasonable doubt by cogent evidence of the prosecution. Similarly, the recovery of the bribe money is also not from the personal possession of the appellant/ accused. This has been seized from the top of the table which was lying in the same room and that money can easily be planted there. The sole statement of the complainant Harishankar also suffers from the material infirmities. In such circumstances, the aforesaid case laws cited by the counsel for the complainant are not applicable to the facts of the present case.

Other witnesses examined by the prosecution are Subhash Sarvate (PW-1), who proved the service book of the appellant/ accused, Siyaram Sharma (PW-3) Head Constable, who proved the seizure of the pink color water at the time of trap, G.C. Sharma (PW-4), who proved the sanction for the prosecution of the appellant/ accused as per Ex.P/12, Bhagsingh Tomar (PW-7), another Constable, who spread the phenolphthalein powder in the pre-trap proceeding, Jagat Singh (PW-8), who proved the registration of the offence as per Ex.P/11 and also proved the memo Ex. P/12 for sending it to forensic science laboratory, Kammod Singh Kushwah (PW-9), who proved the receipt of Ex.P/13 received from the forensic science laboratory for the sample delivered in that laboratory, Devendra Singh Kushwah (PW-11), the investigating officer, who recorded the statement of the witnesses and Ramlakhan Bhadoria (PW-12), who proved the necessary procedure for the concerning trap.

The appellant/ accused has also examined the defense witnesses namely Jagdish (DW-1), who proved the enmity in between the complainant Harishankar and the appellant/ accused, Ramesh Pandey (DW-2), who was the personal servant of the appellant/ accused who prepared his food etc. in the house concerned. Udayveer Singh Bhadoria (DW-3), the bus operator, who proved the previous criminal history of the complainant Harishankar, Brijkishore Sharma (DW-4), who proved the necessary procedure for the amendment in the time table of the bus in the RTO office, Mukesh Parihar (DW-5), who also proved the concerned procedure, Ramroop (DW-6), who proved that Ramashankar was working as personal servant of the appellant/ accused as stated by the complainant. Santosh Sharma (DW-7), who is also clerk in the RTO office and proved the procedure for necessary amendment in the time table of plying bus, Jaishriram (DW-8), who proved the fact that a report had been lodged against Ramashankar by one Naresh Singh which is Ex. D/7, Raghuveer Sahay (DW-9) also proved about the previous criminal case registered against the complainant Harishankar Singh. The same is the statement of Sitaram Singh Bhadoria (DW-10) Constable, Deepak Kumar (DW-11), Radheshyam Joshi (DW-12), J.P. Narvaria (DW-13), Harishchandra Arya (DW-14), M.S. Vyas (DW-15) and S.K. Jindal (DW-16) also proved the previous enmity in between the complainant and appellant/accused and also the procedure with regard to the amendment in the time table of the bus concerned and their statement also considered.

In view of the aforesaid detailed discussion of the prosecution as well as defense evidence adduced by the parties before the trial court, in my considered opinion, the prosecution has failed to prove beyond reasonable doubt that the appellant/ accused has ever demanded any illegal gratification of Rs. 3000/- from the complainant Harishankar Singh. It is also not proved that the appellant/ accused accepted the concerning bribe money from the complainant Harishankar Singh and it is also not proved that the concerning bribe money has also been recovered from the personal possession of the appellant/ accused and in view of the aforesaid facts, the charge leveled against the appellant for accepting the bribe money punishable u/s 7 read with 13 (1) (d) and 13 (2) of the PC Act is not proved beyond reasonable doubt. Hence, the impugned judgment of conviction and sentence passed by the trial court appears to be erroneous and liable to be set-aside.

Resultantly, the appeal preferred by the appellant is allowed. The impugned judgment of conviction and sentence dated 7-4-2005 passed by the trial court is set-aside and appellant/ accused is acquitted from the charge u/s 7 read with 13 (1) (d) and 13 (2) of the PC Act. Fine amount, if any, deposited by the appellant be refunded back to him. The appellant is on bail. His bail bond stands discharged forth-with.