Shyam Sunder Tandon vs State of Chhattisgarh

R.S. Sharma, J.—This appeal is directed against judgment dated 27-1-2004 passed by 1st Additional Sessions Judge/Special Judge, Raipur in Special Case No. 9/2002. By the impugned judgment, accused/appellant Shyam Sunder Tandon has been convicted u/s 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (henceforth ''the Act, 1988'') and sentenced in the following manner with a direction to run the sentences concurrently:

Case of the prosecution, in brief, is as under:

On 9-5-2001, the appellant was posted as a Patwari of Halka No. 12, Village Champa, R.I. Circle Baloda Bazar in the capacity of a public servant. An agricultural land was situated at Village Champa in the names of wife and father-in-law of complainant Narendra Singh Chawla (PVV-3). An old Pipal Tree situated on that land was cut by Ram Singh Verma and Sunder Verma. The complainant had made a complaint in this regard to S.D.O. (Revenue) on 29-3-2001. S.D.O. (Revenue), Baloda Bazar had forwarded the complaint to Tasildar Baloda Bazar and S.H.O., Police Station Palari. S.H.O., Police Station Palari had asked the complainant to submit map and khasra panchshala etc. of the land. Therefore, the complainant had submitted an application to the appellant for supply of copies of the above documents. The appellant demanded bribe of Rs. 300/- from the complainant therefor. Since the complainant did not want to give bribe to the appellant, he made a written complaint (Ex. P-12) to the Superintendent of Police, Special Police Establishment, Lokayukta, Raipur on 8-5-2001. The complaint (Ex. P-12) was forwarded to Inspector Anil Kumar Pathak (PW-10) for necessary action. On receiving the complaint (Ex. P-12), Anil Kumar Pathak (PW-10) called for Panch Witnesses Dr. T.N. Vaishnav (PW-1) and V. Parth Sarthi Rao (PW-2). Both the Panch Witnesses were given the complaint (Ex. P-12) for their perusal. They enquired about the complaint (Ex. P-12) from the complainant. Thereafter, two currency notes in the denomination of Rs. 100/- and two currency notes in the denomination of Rs. 50/-, total Rs. 300/- were submitted by the complainant. A pre-trap demonstration was arranged, wherein a solution of sodium carbonate was prepared in a glass. On dip of a plain paper in the solution, colour of which did not change. Thereafter, another piece of paper containing phenolphthalein powder was dipped in the said solution, colour of the solution turned pink. A pre-trap panchnama (Ex. P-1) was prepared. Numbers of the currency notes submitted by the complainant were recorded in the pre-trap panchnama (Ex. P-1). After submission of the currency notes, phenolphthalein powder was smeared thereon and the notes were kept in upper left pocket of the shirt of the complainant. The complainant was instructed and guided as to how the trap would be arranged and as to the role which he was required to play in the trap proceeding. The trap-team proceeded for the house of the appellant at Baloda Bazar. The appellant was present at his house. The complainant gave currency notes of Rs. 300/- to the appellant. Thereafter, the complainant transmitted signal to the trap-team. The trap-team rushed the spot immediately and caught hands of the appellant. The trap-team seized the currency notes of Rs. 300/- from Lungi of the appellant. The numbers of the seized currency notes were compared with the numbers mentioned in the pre-trap panchnama (Ex. P-1), which were found similar. A solution of sodium carbonate was prepared and fingers of the appellant were dipped in the solution, colour of the solution turned pink. Thereafter, the solution was kept in a bottle and sealed. Another solution of sodium carbonate was prepared in which part of the Lungi of the appellant, where the bribe money was kept, was dipped, colour of the solution turned pink. The solution was kept in another bottle and sealed. Another solution of sodium carbonate was prepared and the seized currency notes were dipped in the solution, colour of the solution turned pink. The solution was kept in another bottle and sealed. Thereafter, trap-panchnama (Ex. P-6) was prepared and the currency notes were seized vide Ex. P-2. Spot-Map (Ex. P-10) was prepared. First Information Reports (Ex. P-11 and P-12) were registered. The seized articles were sent to Forensic Science Laboratory, Sagar for examination vide Ex. P-13. Report (Ex. P-15) was received therefrom. In the report (Ex. P-15), the phenolphthalein test was found positive.

After completion of the investigation, sanction for prosecution against the appellant was obtained and charge-sheet was filed against him in the Court of 1st Additional Sessions Judge/Special Judge, Raipur. The learned Special Judge framed charges against the appellant u/s 7 and Section 13(1)(d) read with Section 13(2) of the Act, 1988.

After appreciation of the evidence available on record, the learned Special Judge convicted and sentenced the appellant as mentioned above.

To establish the charges against the appellant/accused, the prosecution examined Dr. T.N. Vaishnav (PW-1), V. Parth Sarthi Rao (PW-2), complainant Narendra Singh Chawla (PW-3), Patwari Buluram Dahariya (PW-4), Constable Pushparaj Singh (PW-5), Head Constable Shivbadan Mishra (PW-6), Constable Ishwar Prasad Verma (PW-7), Dinesh Kadam (PW-8), S.D.O. K.R. Ugre (PW-9), Inspector Anil Kumar Pathak (PW-IO). In defence, the appellant examined Rajesh Pande (DW-1), Revenue Inspector Kanhaiyalal Sahu (DW-2) and Tahsildar Shiv Kumar Tiwari (DW-3).

Smt. Fouzia Mirza, counsel for the appellant argued that the prosecution has failed to prove demand of illegal gratification by reliable and cogent evidence. Dr. T.N. Vaishnav (PW-1) and V. Parth Sarthi Rao (PW-2) specifically deposed that they had not heard the appellant demanding money of his own from the complainant. Looking to the evidence of Dr. T.N. Vaishnav (PW-1), V. Parth Sarthi Rao (PW-2), Rajesh Bande (DW-1), Revenue Inspector Kanhaiyalal Sahu (DW-2) and Tahsildar Shiv Kumar Tiwari (DW-3), it appears that the appellant had received money for a watch. The appellant had purchased a watch from the complainant, but the watch had gone out of order, therefore, the appellant had returned the watch to the complainant and had received the purchase price of Rs. 300/- back from the complainant. She further argued that Rajesh Bande (DW-1) was a material witness for the prosecution but the prosecution did not examine him, which is fatal to the case of the prosecution. Demand of illegal gratification, which is sine qua non for convicting the appellant u/s 7 and Section 13(1)(d) read with Section 13(2) of the Act, 1988, is not proved. A presumption cannot be drawn against the appellant. She further argued that it is necessary for the prosecution to satisfy and establish all the ingredients of Section 7 and Section 13(1)(d) read with Section 13(2) of the Act, 1988 before conviction of the appellant. She submits that the impugned judgment is not sustainable in the eyes of law. She further submitted that even after a presumption is drawn, the appellant has established his case that he did not accept the money as illegal gratification. Therefore, the impugned judgment is not sustainable and the appellant deserves to be acquitted. She placed reliance on N. Raja Kantham Vs. State Inspector of Police, , State of Kerala and Another Vs. C.P. Rao, , State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, , C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala, T. Subramanian Vs. State of Tamil Nadu, Duraisami v. State of T.N. (2005) 10 SCC 233 and M. Abbas Vs. State of Kerala,

On the contrary, Shri Sandeep Yadav, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, refuted the above arguments and submitted that the prosecution has led clinching and reliable evidence. The bribe money was recovered from the appellant. When fingers of the appellant were dipped in the solution of sodium carbonate, colour of the solution turned pink. Therefore, there is a presumption against the appellant u/s 20 of the Act, 1988 and the judgment of conviction and sentence against him does not warrant any interference by this Court.

Having heard rival contentions of the parties, I have perused the record of Special Case No. 9/2002.

The learned Special Judge, after appreciation of the evidence available on record, held that the appellant had demanded illegal gratification of Rs. 300/- from the complainant and he accepted the illegal gratification from the complainant.

Complainant Narendra Singh Chawla (PW-3) deposed that the appellant was posted as a Patwari of Halka No. 12, Village Champa. An agricultural land was situated at Village Champa in the names of his wife and father-in-law. An old Pipal Tree situated on that land was cut by Ram Singh Verma and Sunder Verma. He had made a complaint in this regard to S.D.O. (Revenue) on 29-3-2001. S.D.O. (Revenue), Baloda Bazar had forwarded the complaint to Tahsildar Baloda Bazar and S.H.O., Police Station Palari. S.H.O., Police Station Palari had asked him to submit map and khasra panchshala etc. of the land. Therefore, he had submitted an application to the appellant for supply of copies of the above documents. The appellant demanded bribe of Rs. 300/- from him therefor. Since he did not want to give bribe to the appellant, he made a written complaint (Ex. P-12) to the Superintendent of Police, Special Police Establishment, Lokayukta, Raipur on 8-5-2001. He further deposed that the complaint (Ex. P-12) was forwarded to Inspector Anil Kumar Pathak (PW-10) for necessary action. Thereafter, two currency notes in the denomination of Rs. 100/- and two currency notes in the denomination of Rs. 50/-, total Rs. 300/- were submitted by him. A pre-trap demonstration was arranged, wherein a solution of sodium carbonate was prepared in a glass. On dip of a plain paper in the solution, colour of the solution did not change. Thereafter, another piece of paper containing phenolphthalein powder was dipped in the said solution, colour of the solution turned pink. A pre-trap panchnama (Ex. P-1) was prepared.

Anil Kumar Pathak (PW-10) deposed that on 8-5-2001, Narenda Singh Chawla (PW-3) had made a written complaint (Ex. P-12) to S.P., Lokayukta, Raipur. He had received the complaint (Ex. P-12) for necessary action. He further deposed that he enquired from the complainant about the complaint (Ex. P-12). He called for two Panch Witnesses Dr. T.N. Vaishnav (PW-1) and V. Parth Sarthi Rao (PW-2). He recorded FIR (Ex. P-11). A pre-trap demonstration was arranged, wherein a solution of sodium carbonate was prepared in a glass. A plain paper was dipped in the solution, but colour of the solution did not change. The complainant was asked to submit currency notes of Rs. 300/-. The complainant submitted two currency notes in the denomination of Rs. 100/- and two currency notes in the denomination of Rs. 50/-, total Rs. 300/- on which phenolphthalein powder was smeared. The said notes were kept in the left upper pocket of the shirt of the complainant. The complainant was informed and guided as to how the trap would be arranged and the role which the complainant was required to play in the trap proceeding. Dr. T.N. Vaishnav (PW-1), V. Parth Sarthi Rao (PW-2) and Head Constable Shivbadan Mishra (PW-6) deposed in similar fashion.

Dr. T.N. Vaishnav (PW-1), V. Parth Sarthi Rao (PW-2), Head Constable Shivbadan Mishra (PW-6) and Anil Kumar Pathak (PW-10) deposed that they proceeded for the house of the appellant at Baloda Bazar. The appellant was present at his house. Complainant Narendra Singh Chawla (PW-3) entered the house of the appellant and gave him the currency notes of Rs. 300/-, which the appellant had kept in his Lungi. Thereafter, the complainant came out of the house and transmitted a signal to the trap team. The trap team rushed the spot immediately and caught hands of the appellant.

Anil Kumar Pathak (PW-10), Dr. T.N. Vaishnav (PW-1), V. Parth Sarthi Rao (PW-2) and Head Constable Shivbadan Mishra (PW-6) deposed that on being asked from the appellant, he told that he had kept the money in his Lungi. They further deposed that a solution of sodium carbonate was prepared in which fingers of the appellant were dipped, colour of the solution turned pink. The solution was kept in a separate and clean bottle and sealed. Panch Witness V. Parth Sarthi Rao (PW-2) recovered the currency notes of Rs. 300/- from the Lungi of the appellant. The numbers of the seized currency notes were compared with the numbers mentioned in the pre-trap panchnama (Ex. P-1) which were found similar. Another solution of sodium carbonate was prepared and the seized currency notes were dipped therein, colour of the solution turned pink. The solution was kept in another bottle and sealed. Another solution of sodium carbonate was prepared in which the part of the Lungi of the appellant, where the currency notes were kept, was dipped, colour of the solution turned pink. The solution was kept in another bottle and sealed.

After perusal of the evidence of Anil Kumar Pathak (PW-10), Dr. T.N. Vaishnav (PW-1), V. Parth Sarthi Rao (PW-2) and complainant Narendra Singh Chawla (PW-3), it is proved that the sum of Rs. 300/- was recovered from the appellant and on comparing the numbers of the seized currency notes with the numbers mentioned in the pre-trap panchnama (Ex. P-1), they were found similar.

Now, I shall examine whether mere recovery of currency notes is sufficient to convict the appellant u/s 7 and Section 13(1)(d) read with Section 13(2) of the Act, 1988?

To constitute an offence u/s 7 of the Act, 1988, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 13(1)(d) of the Act, 1988, the demand and acceptance of the money for doing a favour in discharge of his official duties is sine qua non for conviction of the accused.

In Banarsi Dass Vs. State of Haryana, the Hon''ble Supreme Court observed thus:

In M.K. Harshan Vs. State of Kerala, this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: (SCC pp. 723-24, para 8)

8....It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW 1. Since PW 1''s evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW 1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable.

Reliance on behalf of the appellant was placed upon the judgment of this Court in C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala, , where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under (SCC pp. 784 & 785-86)

In Suraj Mal Vs. State (Delhi Administration), this Court took the view that (at SCC p.727, para 2) 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 any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

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A three-Judge Bench in M. Narsinga Rao Vs. State of Andhra Pradesh, while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p.700, para 24)

24....we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi Vs. State of Maharashtra, The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: (Madhukar case, SCC p.577, para 12)

The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted ''as motive or reward'' for doing or forbearing to do any official act. So the word gratification'' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like ''gratification or any valuable thing''. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word ''gratification'' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.

In fact, the above principle is no way a derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram Vs. The State of Rajasthan, where similar view was taken.

In T. Subramanian v. State of T.N. (supra), the Hon''ble Supreme Court observed that in a case u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, mere proof of receipt of money by the accused in absence of proof of demand and acceptance of money as illegal gratification is not sufficient to establish guilt of the accused. If the accused offers reasonable and probable explanation based on evidence that the money was accepted by him, other than as an illegal gratification, the accused would be entitled to acquittal.

In Suraj Mal Vs. State (Delhi Administration), , the Hon''ble Supreme Court held that mere recovery by itself cannot prove the charge of the prosecution against the appellant in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money.

In C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (supra), the Hon''ble Supreme Court observed thus:

In Suraj Mal Vs. State (Delhi Administration), this Court took the view that (at SCC p.727, para 2) 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 any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made u/s 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.

4....It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him u/s 4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. (emphasis supplied) (See V.D. Jhangan Vs. State of Uttar Pradesh,

In State of Kerala and another v. C.P. Rao (supra), the Hon''ble Supreme Court observed thus:

In the background of these facts, especially the non-examination of CW 1, was found very crucial by the High Court. The High Court has referred to the decision of this Court in Panalal Damodar Rathi Vs. State of Maharashtra, wherein a three-Judge Bench of this Court held that when there was no corroboration of testimony of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on. In the aforesaid circumstances, the three-Judge Bench in Panalal Damodar Rathi case held that there is grave suspicion about the appellant''s complicity and the case has not been proved beyond reasonable doubt. (See SCC para 11.)

In C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala, , this Court while dealing with the case under the Prevention of Corruption Act, 1988, by referring to its previous decision in Suraj Mal Vs. State (Delhi Administration), , held 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 any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. (See SCC para 18.)

In a subsequent decision of this Court also under the Prevention of Corruption Act, in A. Subair Vs. State of Kerala, 7, this Court made certain pertinent observations about the necessity of the presence of the complainant in a bribery case. The relevant observations have been made in paras 18-19 which are quoted below: (SCC p.592)

18....The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification for non-examination of the complainant.

We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for the non-examination of the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the court.

Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in SCC para 28 of A. Subair case made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court.

In the instant case, in his defence, the appellant examined Rajesh Sande (DW-1), Revenue Inspector Kanhaiyalal Sahu (DW-2) and Tahsildar Shiv Kumar Tiwari (DW-3) and took defence that he had received the money for a watch. He had purchased a watch from complainant Narendra Singh Chawla (PW-3), but the watch had gone out of order, therefore, he had returned the watch to the complainant and had received the purchase price of Rs. 300/- back from the complainant. The complainant was pressuring him to record the name of his wife in place of his father-in-law in the revenue record. He has been falsely implicated by the complainant.

Dr. T.N. Vaishnav (PW-1) deposed in cross-examination in paragraph 7 that it is true that the complainant is a disabled person and is unable to move properly. It is also true that when they reached near the house of the appellant, the complainant was sitting in a rickshaw. He further deposed that on being asked, the complainant told them that he had sent the money to the appellant through the rickshaw-puller. He further deposed that it is true that 5-6 persons were sitting inside the house of the appellant and the money was lying on a cot. It is also true that the money was taken-up from the cot. He further deposed that it is true that the appellant was saying that he had not taken the money as bribe but he had taken the same for the watch.

V. Parth Sarthi Rao (PW-2) deposed that when they entered the house of the appellant the appellant was sitting on a cot. 2-3 persons were sitting before him on a bench. He had not seen giving money by complainant Narendra Singh Chawla (PW-3) to the appellant. He further deposed that it is true that on being asked, the appellant told that the money was for the watch. He further deposed that it is wrong to say that the appellant had told that he accepted the money from the complainant as bribe. Rather, he had told that he had accepted the money for the watch.

Rajesh Bande (DW-1) deposed that complainant Narendra Singh Chawla (PW-3) had a shop of repairing of watches. He further deposed that he had taken the complainant to the house of the appellant in his rickshaw. He further deposed that the complainant had sent him to the house of the appellant along with the money. When he entered the house of the appellant, the appellant was taking dinner. He further deposed that he gave the money to the appellant which the appellant kept on a cot.

Tahsildar Shiv Kumar Tiwari (DW-3) deposed that the complaint of the complainant was sent to Tahsildar Baloda Bazar for necessary action. The Tahsildar Baloda Bazar had forwarded the complaint to the Naib-Tahsildar, Baloda Bazar. He further deposed that Revenue Inspector had submitted his report with which khasra panchshala and map, prepared by the appellant, were annexed.

Revenue Inspector Kanhaiyalal Sahu (DW-2) deposed that he knew the appellant. Patwari Halka No. 12, Village Champa fell into his jurisdiction. He had received an instruction from Tahsildar, Baloda Bazar to submit a report after making inspection of the site, i.e., the land of Babulal on which mango trees were cut. He had gone to the site for inspection along with the appellant. The appellant had prepared map, khasra, report and seizure memo and handed over the same to him.

Ex. D-5 is a map, which is annexed with the report (Ex. D-4C). Ex. P-8C is an application submitted for supply of copies of khasra, kistbandi khatauni and map. This application was submitted on 30-3-2001. Ex. D-5 was prepared on 15-4-2001 and submitted to the Revenue Inspector. It appears that the above revenue papers were already annexed with the report of the Revenue Inspector. Looking to the above facts, it is difficult to believe that the appellant would have demanded bribe from the complainant for supply of the above mentioned revenue papers.

From perusal of evidence of Dr. T.N. Vaishnav (PW-1) and V. Parth Sarthi Rao (PW-2), it appears that they did not hear the talks done between the complainant and the appellant nor they saw the complainant giving money to the appellant. In a trap case, at least some panch witnesses should over hear the conversation or see something to which they can depose. The corroboration is essential in a case like this for what actually transpired at the time of alleged occurrence and acceptance of bribe. In the instant case, the above facts are lacking very much.

According to complainant Narendra Singh Chawla (PW-3), he had given the sum of Rs. 300/- to the appellant. According to Dr. T.N. Vaishnav (PW-1) and V. Parth Sarthi Rao (PW-2), some persons were sitting inside the house of the appellant. I am of the view that it is not possible for a public servant to make demand of illegal gratification and accept the same in presence of any other person.

It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of an inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence. If each link of the chain of events is established pointing towards the guilt of the accused, the prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence.

So far as presumption u/s 20 of the Act, 1988 is concerned, it is well settled that the presumption to be drawn u/s 20 is not inviolable one. The accused charged with the offence can rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption, the same would stick and then it can be held by the Court that the prosecution has proved that the accused accepted the amount towards gratification. It is equally well settled that the burden of proof upon the accused person against whom the presumption is made u/s 20 of the Act, 1988 is not akin to the burden placed on the prosecution to prove the case beyond a reasonable doubt. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts, i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.

In the instant case, looking to the evidence available on record, it is evident that the appellant had accepted the amount of Rs. 300/- from the complainant for the watch, which he had purchased from the complainant, but the watch had gone out of order, therefore, the appellant had returned the watch to the complainant and had received the purchase price of Rs. 300/- back from the complainant.

It appears that the appellant had accepted the money and kept the same in his Lungi, therefore, when the fingers of the appellant were dipped in the solution of sodium carbonate, colour of the solution turned pink. Therefore, mere recovery of money from the appellant by itself cannot prove charges of the prosecution against the appellant in absence of any evidence to prove demand of bribe or to show that the appellant voluntarily accepted the money or illegal gratification. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant u/s 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 are set aside. The appellant is acquitted of the charges framed against him. Presently, he is on bail. His bail bonds are cancelled and sureties stand discharged.