State of Rajasthan @APPELLANT@Hash Kailash Dan

State has laid this Criminal Leave to Appeal under Section 378(iii) & (i) of the Code of Criminal Procedure, 1973 to challenge judgment dated 22nd of

September, 2016, passed by Special Judge, Sessions Court, Prevention of Corruption Act, Bikaner (for short, ‘learned trial Court’).  By the

impugned judgment, learned trial Court has acquitted the accused-respondent for offence under Sections 7, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988 (for short, ‘Act of 1988’).

 Facts, in brief, giving rise to this Leave to Appeal are that pursuant to written report dated 15th of September, 2009, submitted by complainant

Mukhram, trap proceedings are arranged by Addl. Superintendent of Police, Anti-Corruption

Bureau, Bikaner, and after completion of investigation, challan was filed against accused-respondent for offence under Sections 7, 13(1)(d) and 13(2)

of the Act of 1988. Thereafter, charges were framed against the accused-respondent, and upon denial of charges, he was put on trial.   Â

The prosecution examined eleven witnesses and also exhibited 22 documents besides articles to substantiate its case.     Â

Conclusion of prosecution evidence is followed by examination of accused under Section 313 Cr.P.C. In his defence, the accused-respondent

examined four witnesses.

After conclusion of defence evidence, learned trial Court heard final arguments and acquitted accused-respondent for both the offences by extending

benefit of doubt.Â

The learned trial Court, upon appreciation of evidence, recorded a definite finding that charges against accusedrespondent are not proved beyond

reasonable doubts. It is also concluded by learned trial Court that the prosecution has failed to prove any work of the complainant pending with the

accusedrespondent. Besides that, learned trial Court also found that prosecution has miserably failed to prove demand and acceptance of illegal

gratification by the accused-respondent. While discussing the prosecution evidence, learned trial Court has also recorded a definite finding that

suspicion, howsoever great it may be, cannot take the shape of a proof and in criminal trials conviction cannot be recorded on balance of probabilities.

Referring to the testimony of decoy, learned trial Court has observed that his statements are inconsistent and selfcontradictory, therefore, not inspiring

confidence. The learned trial Court also concluded that the alleged illegal gratification is not recovered from the accused respondent and the same

was found lying on a table.

 I have heard learned Public Prosecutor, learned counsel for the respondent, perused the impugned judgment and also scanned entire record of the

case.

 Upon examining the matter in its entirety, in my opinion, the learned trial Court has discussed the prosecution evidence threadbare and thereafter,

doubting its credibility to bring home guilt for the charged offences against accused-respondent, passed the verdict of acquittal. The learned trial

Court, while examining demand of illegal gratification by the accused-respondent, has threadbare discussed the entire evidence including the defence

evidence and the transcript to record a definite finding that prosecution has failed to prove demand by the accusedrespondent. The learned trial

Court has also taken note of the fact that written report was submitted by the complainant on 15.09.2009 whereas his work was done a day prior to it

by the accused-respondent and papers were also handed over to him (complainant).  Factum of recovery of the alleged bribe amount from table is

also taken into consideration by the learned trial Court to find serious loopholes in the prosecution case vis-a-vis offence under Section 13(1)(d) read

with 13(2) of the P.C. Act.

The learned trial Court has also relied on the legal precedents throwing light on the issue for extending benefit of doubt to the accused-

respondent.  After examining the matter de novo, I am unable to find any infirmity in the findings of the learned trial Court. The impugned

judgment, in my view, is neither perverse nor suffers from any legal infirmity or non- consideration/misreading of evidence on record. By no stretch

of imagination findings and conclusions of the learned trial Court can be categorized as against the weight of evidence.

Finding about absence of demand and no recovery of the alleged amount of illegal gratification from the accusedrespondent, coupled with the fact that

no work of the complainant was pending with him (accused-respondent), has obviously persuaded learned trial Court to take a view favouring the

accused-respondent, which in my opinion cannot be categorized as infirm.   It is trite that when two views are possible, appellate court should

not reverse the judgment of acquittal merely because the other view is possible.  In other words, when two views are reasonably possible from

the very same evidence, it is rather difficult to comprehend that prosecution has proved its case beyond reasonable doubts.

Supreme Court in Mukhtiar Singh (since deceased) through his L.R. V/s. State of Punjab [2017 Cr.L.R. (SC) 641] in absence of pending work with

the accused, sans demand and acceptance of illegal gratification, has completely ruled out drawing presumption under Section 20 of the P.C. Act

and acquitted accused for the offences under Section 7, 13(1)(d) read with 13(2) of the P.C. Act.

The Court held:-

 “The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now

engaged the attention of this Court on umpteen occasions. In A. Subair Vs. State of Kerala (2009) 6 SCC 587, this Court propounded that the

prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal

gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State

of Kerala Vs. C.P. Rao, (2011) 6 SCC 450 that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not

prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted

the money knowing it to be bribe, conviction cannot be sustained.

In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj Vs. State of A.P., (2014) 13 SCC 55 underlining that mere

possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as

Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt

or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the

proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the

Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P.

Satyanarayana Murthy (supra) on a survey of its earlier decisions on the prerequisites of Sections 7 and 13 and the proof thereof summed up its

conclusions as hereunder: “23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)

and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal

gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two

Sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the

amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder.â€Â    (Emphasis

supplied)

 In P. Satyanarayana Murthy Vs. The Dist. Inspector of Police & Ors. [(2015) 10 SCC 152], Supreme Court has clarified that proof for demand of

illegal gratification is gravamen of offence under Sections 7 and 13(1)(d) (i) & (ii) and in absence thereof charge-sheet would fail. The Court held:

“This Court in A. Subair v. State of Kerala (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)

(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the

accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are

vital ingredients necessary to be proved to record a conviction.

In State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-Ã -vis the same offences, held that mere

recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the

accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj

(supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an

offence Under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal

gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be

held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence Under

Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable

only to an offence Under Section 7 and not to those Under Section 13(1)(d) (i) & (ii) of the Act, it is contingent as well on the proof of acceptance of

illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only

if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption Under Section 20 of the Act

would also not arise.

The proof of demand of illegal gratification, thus, is the gravamen of the offence Under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence

thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof,

dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person

accused of the offence Under Sections 7 or 13 of the Act would not entail his conviction thereunder.â€​

In view of foregoing discussion, no case for grant of leave to appeal is made out.

Consequently, leave is declined and the appeal is, hereby, rejected.