HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Case :- CRIMINAL APPEAL No. - 10[SECTION]7 of 2015 Appellant :- [ENTITY] Respondent :- [ENTITY] Counsel for Appellant :- [ENTITY],[ENTITY],[ENTITY],[ENTITY],[ENTITY],[ENTITY],[ENTITY] Counsel for Respondent :- Govt. Advocate,[ENTITY] Hon'ble Mrs. [ENTITY],J.
1. This appeal assails the correctness of the judgment and order dated 14.08.2015 passed by learned Special Judge, [ACT], Court No.1, Lucknow in [CASE NUMBER], registered as R.C.No.20(A)/2009, under [SECTION] and [SECTION] read with [SECTION] of [ACT] [ACT]/A.C.B., Lucknow, whereby the Special Judge has convicted the accused-appellant namely, [ENTITY] and sentenced him under [SECTION] of [ACT] for three years rigorous imprisonment with fine of Rs.10,000/-, in default, to undergo three months additional imprisonment and under [SECTION] of [ACT] for five years' rigorous Imprisonment with fine of Rs.20,000/-, in default, to undergo six months' additional imprisonment. All the sentences were directed to run concurrently.
2. The facts and circumstances leading to this case in a nutshell are that this case was registered under the Central Bureau of Investigation ([ACT]), Lucknow Branch on 28.05.2009 on the basis of written complaint lodged by Shri [ENTITY], Proprietor M/s [ENTITY], 171, Vinay Nagar, Sector-[SECTION], Gwalior, Madhya Pradesh regarding demand of Rs.1,000/- as bribe for processing of the matter pertaining to return of Earnest Money Deposit/Security Deposit (EMD/SD) by the complainant.
[SECTION]. On the premise of complaint dated 28.05.2009, the [ACT] team consisting of Shri [ENTITY], Inspector, Shri [ENTITY], Inspector, [ENTITY], Inspector, [ENTITY] and [ENTITY] was constituted which along with two independent witnesses and the complainant, assembled on 29.05.2009, at Suit No.4, C.T.X. Exchange, BSNL Inspection Quarter, Allahabad at 07:[SECTION]0 hours. Shri [ENTITY] representative of Shri [ENTITY], the complainant was introduced to the witnesses as well as the members of CBI team, and the written complaint dated 28.05.2009 was read over to all of them. Since the complaint discloses the demand of bribe of Rs.1,000/- by Shri [ENTITY], Office Superintendent, O/o Assistant Material Manager, North Central Railway, Allahabad in connection with processing of pending matter for return of EMD/SD amounting to Rs.19,000/- deposited by the complainant with the Railways, in connection with supply of four hydraulic machines to wagon repair workshop, North Central Railway, Jhansi made by him during the year 2008, Shri [ENTITY] was acting on behalf of complainant, as the complainant was busy in some urgent work at Jhansi.
4. After the conversation between the accused-appellant and Shri [ENTITY], the deal was fixed for 01:00p.m. in front of Allahabad High Court, where Shri [ENTITY], witness was to accompany Shri [ENTITY] as shadow witness. Finally Shri [ENTITY], appellant came at 02:15p.m. at the fixed place, where Shri [ENTITY] extended the bribe amount to him, who kept it in the left side pocket of his pants. Immediately, he was caught red handed by the [ACT] and to avoid any untoward incident at the place of occurrence, the [ACT] team proceeded towards inspection house, where the rest of the formalities of hand-wash etc. were completed and the appellant was officially arrested.
5. The case was registered on 28.05.2009 at 01:[SECTION]0 p.m. at RC.No.20(A)/2009 and assigned to Shri [ENTITY], Inspector, [ACT] for further action. The investigation was conducted by Shri [ENTITY] and Shri [ENTITY]. Both Inspector, [ACT], after completion of investigation submitted charge-sheet against the accused-appellant under [SECTION] and [SECTION] read with [SECTION] of [ACT]. The charge against the accused-appellant under aforesaid sections was framed on 29.07.2011, to which he denied and claimed trial.
6. To bring home the guilt of the appellant, the prosecution has examined as many as nine witnesses, namely PW-1 Shri [ENTITY] (Sanctioning Authority), PW-2 Shri [ENTITY] (complainant), PW-[SECTION] Shri [ENTITY], PW-4, Shri [ENTITY], PW-5 Shri [ENTITY] (both are independent witnesses), PW-6 Shri [ENTITY] (representative of the first informant), PW-7, Shri [ENTITY] (Investigating Officer), PW-8 Shri [ENTITY] (Trap Laying Officer hereinafter referred to as 'TLO') and PW-9 Shri [ENTITY] (Investigating Officer).
7. The documentary evidence adduced and proved by the prosecution is sanctioning order exhibit Ka-1, letter dated 29.05.2009 (exhibit Ka-2), original banker cheques (exhibit Ka-[SECTION] and Ka-4), re-investment certificates of Union Bank of India dated 21.02.2007 (exhibit Ka-5 and Ka-6), complaint (exhibit Ka-7), Pre-Trap Memorandum (exhibit Ka-8), Office Order No.76 of North Central Railway (exhibit Ka-8A), Post Trap Memorandum (exhibit Ka-9), Work Distribution Order (exhibit Ka-9A), site plan (exhibit Ka-10), Forensic Laboratory report dated 02.06.2009 (exhibit Ka-11), statement of Shri [ENTITY] dated 24.07.2009 (exhibit Ka-12), chik F.I.R. (exhibit Ka-[SECTION]), arrest and search paper (exhibit Ka-14), search list documents (exhibit Ka-15), charge-sheet (exhibit Ka-16), forwarding letter dated 02.06.2009 to Central Forensic Laboratory, New Delhi exhibit Ka-17, report of Central Forensic Laboratory (exhibit Ka-18) and letter addressed to Investigating Officer, [ACT] dated [SECTION]1.08.2009 exhibit Ka-19. The material exhibits filed and proved by the prosecution are material exhibit no.1, file No.600[SECTION]060 and material exhibit no.2, file No.600[SECTION]0[SECTION].
8. PW-1 Shri [ENTITY], retired D.C.M.M., Kanpur has deposed on oath that on 28.05.2009, he was posted as D.C.M.M., Kanpur and has granted prosecution sanction against the accused-appellant on 18.11.2009, which is exhibit Ka-1. He has further deposed that he was competent authority to grant prosecution against the accused-appellant.
9. PW-2 Shri [ENTITY], Proprietor M/s [ENTITY], has stated on oath that his firm is functioning since 1988, in which hydraulic machine and ancillary parts are manufactured. In the year 2007, he received two work orders from the Controller of Stores, North Central Railway, Allahabad, against which he deposited two demand drafts of Rs.5,000/- each. As per rules after completion of work order, deposited EMD/SD is to be returned to the applicant. Shri [ENTITY] accused-appellant took charge as Office Superintendent in place of Shri [ENTITY] in the year 2008. When he was contacted for return of EMD/SD, he demanded Rs.1,000/- as bribe. Earlier Shri [ENTITY] also demanded the same amount for return of EMD/SD, but he did not wish to pass on the bribe, as such, he along with his firm representative Shri [ENTITY] went to the Office of the [ACT], Hazratganj, Lucknow on 28.05.2009 and lodged a complaint for trap of the accused-appellant. He authorized his representative Shri [ENTITY] for further follow up. He has also proved exhibit Ka-[SECTION] to exhibit Ka-6, D.D. and D.R.C. to be released in his favour. After completion of work order and exhibit Ka-7, the complaint he lodged with the Superintendent of Police, [ACT] on 28.05.2009 in his oral testimony.
10. PW-[SECTION] [ENTITY] has deposed on oath that he was posted between November, 200[SECTION] and 20 June, 2012, on different posts in Office of the Stores, North Central Railway and has substantiated the fact that the accused-appellant was transferred vide order dated 0[SECTION].0[SECTION].2009 and has taken over the charge of O.S.I. in place of Shri [ENTITY]. He has further stated that vide letter dated [SECTION]0.05.2009, the firm of the complainant completed the work order and there was also a request for release of EMD/SD in favour of the complainant. It is also said that a proposal for release of EMD/SD was prepared by the accused-appellant, which was approved by the competent authority. He has categorically stated that the accused-appellant was looking after the work for which the alleged bribe was demanded.
11. PW-4 Shri [ENTITY] has deposed on oath that in the year 2009, he was posted as Senior T.O.A. in the office of Director General, Telecommunication, District Allahabad. On 27.05.2009 Divisional Engineer, instructed him to meet [ACT] Officer, [ENTITY] on 28.05.2009 in the Inspection House in C.T.X. Compound. Similar direction was given to Shri [ENTITY], another employee of the same office. Consequently, on 28.05.2009 both of them met Shri [ENTITY], who called them at 07:00a.m. on 29.05.2009. When they reached on 29.05.2009 around 07:00a.m., complaint of Shri [ENTITY] was read over to them and consequently pre-trap proceedings commenced as both of them were given directions for the trap to be conducted on the same day. He has also proved material exhibit 1 and 2 and confirmed his signatures on exhibit ka-9 and substantiated the post-trap proceedings also. He was informed that the accused-appellant is to be caught red handed while accepting bribe and accordingly they proceeded for the place fixed where the appellant reached around 02:15p.m. and after proper signal he was arrested by the [ACT] team near Allahabad High Court.
12. PW-5 Shri [ENTITY] has deposed on oath that he was also posted in BSNL Office, Allahabad in the year 2009 and was instructed by the Senior Officer to receive [ACT] team on 28.05.2009 and station them C.T.X. guest house, where again he was instructed to be present on 29.05.2009 at 07:00a.m. Accordingly he reported on 29.05.2009, where the pre-trap proceedings were conducted and consequently the accused-appellant was arrested near Allahabad High Court and after arrest, post trap proceedings were drawn. He has proved the material exhibit 5, 6, 7 & 9 and material exhibit [SECTION] to 16.
[SECTION]. PW-6 Shri [ENTITY] has stated on oath that he has family relation with the complainant Shri [ENTITY]. On 28.05.2009 he came to Allahabad from Gwalior and participated in the entire trap proceedings as representative of Shri [ENTITY]. He has further stated that on 29.05.2009, he reached the guest house around 08:00-08:[SECTION]0a.m. where he met [ACT] officers and two independent witnesses namely PW-[SECTION] and PW-4. The complainant Shri [ENTITY] was not present there. He has further confirmed the pre-trap proceedings, arrest of the accused-appellant at the place of occurrence by the [ACT] and preparation of post trap proceedings in his presence. He has also proved the written complaint exhibit Ka-7 in his testimony.
14. PW-7 Shri [ENTITY] has deposed that he was posted as Director, CBI/ACB, Lucknow in the year 2009, in which he recorded the statement of the complainant, witnesses and the C.B.I officers. He also forwarded the relevant material to C.F.S.L., New Delhi for analysis. He has substantiated the pre-trap and post trap memorandum prepared during the said incident.
15. PW-8, Shri [ENTITY], Inspector, [ACT]/A.C.B., Lucknow has deposed on oath that he was assigned the matter of bribe against the accused-appellant and he acted as Trap Laying Officer (T.L.O.) and conducted the entire proceedings in presence of two independent witnesses from BSNL, Allahabad. He has in detail explained the entire pre-trap, arrest of the accused-appellant and post trap proceedings in his deposition.
16. PW-9, [ENTITY] has stated on oath that the investigation of the case was transferred to him from Shri [ENTITY] in the year 2009 vide order of the then Superintendent of Police. Since the statement of all the witnesses were already recorded and documents were compiled as such, he merely filed the charge-sheet against the accused-appellant.
17. Incriminating evidence and circumstances were put to the appellant under [SECTION] [ACT] in which he has stated that no recovery as alleged has been made and the prosecution sanction has been granted under pressure of [ACT] It has further been stated that he did not demand any bribe, all false papers and statements have been prepared and no fair investigation did take place due to pressure of officers of [ACT] by the Investigating Officer. The document D-7 has been prepared and proved in a misdirected manner and wrong charge-sheet has been submitted against him. In defence eight witnesses have been adduced by the accused-appellant, out of which seven witnesses are from the concerned department and the accused-appellant has examined himself as one of the witness.
18. DW-1 Shri [ENTITY], Office Superintendent, Purchase Division, North Railway, Allahabad has deposed on oath that in the year 2009, he was posted as Senior Clerk in Purchase Division of the North Railway where requisition letter was received and accordingly tender was issued. He has explained the procedure in detail categorically stating that on 29.05.2009, he reached the office at 09:[SECTION]0a.m. and signed document no.D-12 (exhibit Ka-2) before lunch. Till 02:00p.m., the accused-appellant was very much present in the office. At 05:45p.m., the team of the [ACT] came to the office for search of certain documents at the seat of accused-appellant. He has also stated that exhibit D-12/exhibit Ka-2 was related to security deposit of the complainant. DW-2 Shri [ENTITY], Clerk, Tender Department, North Central Railway has substantiated and corroborated the fact that EMD/SD of the complainant was deposited with the Department and the same was to be returned. DW-[SECTION] Shri [ENTITY] has explained in detail the procedure of E-Procurement System in Indian Railways. DW-4, Shri [ENTITY], Senior Stores Manager, North Central Railway has deposed on oath that Rs.[SECTION]1,500/- security was deposited in the Department pertaining to the complainant. DW-5 Shri [ENTITY], Assistant Stores Manager has merely deposed on oath that the accused-appellant is diligent and disciplined officer and has stated nothing against him. DW-6 Shri [ENTITY] and DW-7 [ENTITY] have deposed in their oral testimony regarding information received in the office pertaining to the deposition of EMD/SD.
19. The accused-appellant has examined himself in defence as DW-8 and explained the entire processing of EMD/SD of the complainant, who contacted him on phone through [ENTITY] and he informed that his letter regarding return of EMD/SD has been received but the complete report has not been sent as such it has to be returned for proper processing. He has further stated that on 29.05.2009 he reached the office at 09:[SECTION]0a.m., Office Superintendent called him at 01:[SECTION]0p.m. and handed over number of signed documents, from 01:[SECTION]0p.m. to 02:00p.m. it was lunch time, subsequently, he attended a small party which got over at 02:15p.m. then he went to Account Section in between 02:[SECTION]0 to 02:45p.m., on way he met [ENTITY], who informed him that Shri [ENTITY] is in Allahabad, who is friend of Shri [ENTITY] (complainant), [ENTITY] introduced him to Shri [ENTITY], who took him to his vehicle, asked him to sit in the same, where some people were already sitting, who threatened him, introducing themselves to be from [ACT] office and finally implicated him in this false case. Documents as per list B-75/1 to B-75/40, B-91/40 to B-91/48 have also been filed in defence by the accused-appellant.
20. The trial court held that the appellant committed the said incident and prosecution established the circumstances, proving the appellant guilty, under [SECTION] & [SECTION] of [ACT] and sentenced him under [SECTION] of [ACT] for three years' rigorous imprisonment with fine of Rs.10,000/-, in default, to undergo three months additional imprisonment and under [SECTION] of [ACT] for five years' rigorous Imprisonment with fine of Rs.20,000/-, in default, to undergo six months' additional imprisonment. Aggrieved by the verdict of the conviction, the appellant preferred the present appeal.
21. Heard Mr. [ENTITY], learned counsel for the appellant, Mr. [ENTITY], learned counsel for the [ACT] and perused the record.
22. Learned counsel for the appellant has submitted that the prosecution sanction granted by the alleged competent authority is without application of mind as is apparent from the oral testimony of Sanctioning Authority PW-1 himself. It has further been argued that genesis of lodging of complaint is under clout as all the actions, which are required to be taken after registration of first information report, have been taken instantly in the present case, prior to even filing of the complaint by the complainant. The first information report is apparently ante time and registered in complete derogation of [ACT] without verifying the alleged complaint.
2[SECTION]. Further, it has been contended on behalf of the accused-appellant that the alleged demand of illegal gratification is not proved, neither by oral nor by documentary evidence. The pre-trap and post trap memorandum have been prepared without following the prescribed procedure. It has also been submitted that the complainant Shri [ENTITY] is in the habit of implicating officials of the department in order to get his work done. The alleged recovery is also doubtful as the same has not been substantiated and corroborated by the independent witnesses. The testimony of independent witnesses is not trustworthy enough to establish the alleged recovery. The prosecution witnesses have given different statement regarding procedure adopted for washing of hands after the alleged recovery, which also indicate towards the falsity of the said recovery. Moreover, there are lot of discrepancies and contradictions in the evidence of witnesses, which falsify the prosecution case.
24. Per contra, learned counsel for the [ACT], contended that the prosecution has established the guilt of appellant in the commission of offence in this case. The FIR version has fully been supported by oral and documentary evidence, based on the said evidence, the court below rightly convicted the appellant and the impugned judgment warrants no interference.
25. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record.
26. In the present case a trap was laid by the Trap Laying Officer for arrest of the appellant while accepting bribe of Rs.1,000/- from the complainant for release of EMD/SD in his favour on 29.05.2009 in front of Allahabad High Court at 02:15p.m. The pre-trap and post trap proceedings were conducted and finally the appellant was arrested after acceptance and recovery of the bribe money. The appellant was charged under [SECTION] and [SECTION] of the [ACT], which read as under:
"7. Public servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in [SECTION], or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
(Explanations) (a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
[SECTION]. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct,
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in [SECTION]; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation. For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
27. The very inception of the case has been questioned on the premise that the written complaint exhibit Ka-7 is said to be presented in the [ACT] Office at Lucknow by the complainant (PW-2) alongwith his representative (PW-6) on 28.05.2009, bearing signatures of both, but PW-6 has not accepted his presence in Lucknow, deposing that he came to Allahabad straight away from Gwalior in the morning of 28.05.2009 to do favour to PW-2 as requested by PW-2, 5-7 days earlier which comes to, even earlier, the alleged demand by the appellant on 27.05.2009. Now, the situation appears to be is, that even before the alleged demand PW-2 was inclined to get the trap of appellant done and PW-6 was not present in Lucknow at the time of filing of complaint, as he was admittedly in Allahabad, and as per his own testimony, he signed on exhibit Ka-7 in Allahabad when shown by [ACT] officials. Moreover, the [ACT] team also reached Allahabad on 28.05.2009 which is substantiated by documentary as well as oral evidence of two independent witnesses PW-4 and PW-5 employees of B.S.N.L., who were instructed on 27.05.2009 to receive the [ACT] team at railway station on 28.05.2009. Thus, it appears that the process for the trap started much before lodging of complaint or even before raising of any such demand on 27.05.2009 as alleged. The entire facts and sequence does not give a fair and genuine picture and the factum of lodging complaint is under clout as the version of complainant (PW-2) and [ACT] in this regard has been belied by PW-6 who allegedly accompanied the complainant (PW-2) to the [ACT] Office on 28.05.2009.
28. A bare perusal of the written complaint exhibit Ka-7 reveals that the same was not verified as per provisions of [SECTION] of [ACT], [ACT] and was registered on the direction of Superintendent of Police, [ACT] on 28.05.2009 at 01:[SECTION]0p.m. without verifying sanctity of the complaint. The procedure of verification has been clarified and substantiated by PW-9 [ENTITY] (I.O.) in his oral testimony wherein he has stated that whenever a complaint is received in the department, the genuineness of the same is verified by higher authorities and when any substance is found in the complaint then first information report is registered. In the present case, admittedly there is no such verification, which is very apparent from the order of the S.P., [ACT] dated 28.05.2009 passed on the said complaint for registration of the case and the case was assigned to Inspector, [ENTITY], PW-8 for further action. Consequent to this order, first information report was registered at 01:[SECTION]0p.m. on 28.05.2009 under [SECTION] of the [ACT]. Thus, it can positively be concluded that the genuineness of the complaint was not verified as per procedure followed by the [ACT] in such cases.
29. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under [SECTION] and [SECTION] of the [ACT]. The same legal principle has been held by the Apex Court in the case of [ENTITY], [ENTITY], [ENTITY] and [ENTITY] upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant. The relevant paragraphs from the cases read as under:
(i) [ENTITY] v. State of A.P.; (2014) [SECTION] SCC 55 "It is a settled position in law that demand of illegal gratification is a sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under [SECTION] unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under [SECTION]. The above also will be conclusive in so far as the offence under [SECTION] is concerned as 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 established. In so far as the presumption permissible to be drawn under [SECTION] of the Act is concerned, such presumption can only be in respect of the offence under [SECTION] and not the offences under [SECTION] of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under [SECTION] of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand."
(ii) [ENTITY] v. District Inspector of Police, State of Andhra Pradesh and Anr.; (2015) 10 SCC 152 "[SECTION] - Proof of demand of illegal gratification is the gravamen of the offence under [SECTION] - Prosecution's failure to prove demand for illegal gratification would be fatal - A person cannot be convicted merely on recovery of the amount from him."
(iii) Krishan Chander v. State of Delhi: (2016) [SECTION] SCC 108:
"2[SECTION]. The proof of demand of illegal gratification, thus, is the gravamen of the offence under [SECTION] of the Act and in absence thereof, unmistakably the charge therefore, 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 [SECTION] or [SECTION] of the Act would not entail his conviction thereunder."
(iv) [ENTITY] v. State of Himachal Pradesh; (2012) [SECTION] SCC 552:
"S. 7 - Demand of bribe - Proof - Necessity - PW 1 complainant stating that demand was made to him over mobile phone, but admittedly no call details furnished - PW 18 IO stating that PW 1 had received demand over landline, and hence, no call details could be secured - Held, in absence of any material/evidence for demand of bribe, conviction of appellant unsustainable - Besides, licence for running hotel, for which alleged bribe was demanded was already issued and in hands of PW 1 before alleged occurrence - Hence, appellant entitled to benefit of doubt."
[SECTION]0. It has been argued on behalf of the accused-appellant that no manner has been described by the complainant in which the alleged demand of bribe was made. As per averment of the complaint dated 28.05.2009, the complainant allegedly contacted the appellant on 27.05.2009 when a demand of Rs.1,000/- as bribe was made to the complainant by the appellant but in what manner and how the demand was raised has neither been mentioned in the complaint nor has it been explained in the oral testimony of the complainant (PW-2), who has categorically stated that he did not visit Allahabad on 27.05.2009 and admitted that no such statement regarding manner of demand of bribe has been given by him to the Investigating Officer under [SECTION] [ACT]
[SECTION]1. The representative of the complainant, Shri [ENTITY], PW-6 has deposed in his testimony that he reached Allahabad on 28.05.2009 around 11:00a.m. and 5-7 days before this day, the complainant asked for his co-operation in a matter, on which count he reached Allahabad. This statement creates a doubt that if the demand was raised on 27.05.2009 then how 5-7 days earlier Shri [ENTITY] PW-2 asked for co-operation of PW-6 Shri [ENTITY]. It has further been stated that he has no knowledge of the genuineness of the said complaint.
[SECTION]2. As per the prosecution story, the demand of alleged illegal gratification was made by the appellant on 27.05.2009 on mobile phone, but there is no averment of the same in the complaint and nothing has been stated as to how and when the demand was made. Further, no call details of mobile phone of the appellant were collected/produced by the prosecuting agency [ACT] either during investigation or before the trial court. The Trap Laying Officer PW-8 has categorically deposed that he could not recollect as to what was the mode of demand of bribe by the appellant to the complainant. The Investigating Officer has also expressed his ignorance about the manner of the demand being made to the complainant. The aforesaid statements of the prosecution witnesses demonstrate that none of them is ascertain as to how the demand was made to the complainant (PW-2) on 27.05.2009.
[SECTION][SECTION]. The prosecution has claimed that Shri [ENTITY] (PW-6) as alleged called the appellant on 29.05.2009 and the demand was again made to him and the place of meeting was fixed, but no call details of 29.05.2009 have been produced by the prosecution in respect of the alleged demand of bribe made by the appellant to PW-6 on phone. The conversation between Shri [ENTITY] and the appellant alleged to have been recorded during preparation of pre-trap memorandum is under suspicion. Both the independent witnesses and T.L.O. namely PW-4, PW-5 and PW-8 respectively have categorically confirmed the transcription of the conversation between Shri [ENTITY] and the appellant during pre-trap proceeding which indicates that the C.D. of conversation was heard by these witnesses but contrary to the same PW-8 has deposed that after preparation of the C.D. it was sealed and then opened before the court then how the same has been confirmed and verified by the witnesses. Moreover, T.L.O. has further deposed that the transcription, which was in the case diary, was not same as recorded in the C.D. In the circumstances, it can be convincingly accepted that neither the alleged demand of illegal gratification to PW-2 on 27.05.2009 has been established nor to PW-6 at the pre-trap proceedings.
[SECTION]4. The prosecution claims that PW-6 met the appellant on 02:15p.m. on 29.05.2009 near entrance of the Allahabad High Court petrol pump where he handed over the bribe money to the appellant. The details of phone numbers and call records of the conversation between the PW-6 and the appellant in between 01:15p.m. to 02:00p.m. have neither been produced in evidence before the trial court nor made part of the post trap memorandum. The recorded conversation between the appellant and PW-6 during trap proceedings was transferred in a blank C.D. (Q-2) but it is pertinent to mention that all the witnesses namely Shri [ENTITY] (PW-6), Shri [ENTITY] (PW-4), Shri [ENTITY] (PW-5) and Shri [ENTITY] (PW-8) have categorically stated in their testimony that the recording of C.D. was incomprehensible and inaudible. Moreover the electronic evidence has not been proved as per legal provisions. In this context, learned counsel for the appellant has made reliance upon Anvar P.V vs P.K Basheer & Ors; (2014) 10 SCC 47[SECTION] wherein it has been observed as under:
"[SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] - evidence of electronic record - admissibility of such a document - any documentary evidence by way of an electronic record under [ACT], in view of [SECTION] and [SECTION], can be proved only in accordance with procedure prescribed under [SECTION] deals with admissibility of electronic record - purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer - it may be noted that Section starts with a non obstante clause - thus, notwithstanding anything contained in [ACT], any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if conditions mentioned under sub-Section (2) are satisfied, without further proof or production of original - very admissibility of such a document, i.e., electronic record which is called as computer output, depends on satisfaction of four conditions under [SECTION] as to, (i) electronic record containing information should have been produced by computer during period over which same was regularly used to store or process information for purpose of any activity regularly carried on over that period by person having lawful control over use of that computer."
Admittedly, the prescribed procedure has not been followed by the prosecution in this case, as such the electronic evidence cannot be read and accepted as admissible for the purposes of the guilt of the appellant.
[SECTION]5. The aforesaid discussion and appreciation of evidence adduced by the prosecution to establish the demand for illegal gratification leads only to one conclusion, that the demand of bribe by the appellant either to PW-2 or to PW-6, has not been proved as required to constitute offence under [SECTION] of the Act.
[SECTION]6. In a recent enunciation by the Apex Court to discern the imperative pre- requisites of [SECTION] and [SECTION] of the Act, it has been underlined in [ENTITY] in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under [SECTION] 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 [SECTION] and [SECTION] of the Act.
[SECTION]7. Now, I advert to the issue of acceptance of the alleged bribe money. The occurrence is said to be have taken place at the petrol pump near Allahabad High Court, where the alleged bribe money was accepted by the appellant, admittedly it is a busy place, but no witness from the public was procured at that place. So far as the testimony of PW-4 and PW-5 is concerned, they were members of raiding party, in service of [ACT] team even before lodging of the first information report and, admitting that they were under pressure of [ACT], as it investigates the irregularities of B.S.N.L. as such they can neither be treated as independent witness nor their testimony can be wholly relied upon. PW-6 is himself the representative of the complainant (PW-2) whose testimony goes uncorroborated. Therefore, the acceptance of bribe money as such is not tenable, however, it immediately leads towards the third and last essentiality i.e. recovery of the bribe money.
[SECTION]8. Indisputably, the appellant was taken to C.T.X. guest house, with hands caught hold by team members and recovery was finally made there. Thus, the place of occurrence was shifted, contrary to the site plan, which vitiates the entire proceedings including the alleged recovery. Moreover, the testimony of PW-8 and PW-5 regarding hand-wash and preparation of post trap memorandum in the guest house makes the truthfulness of the same untenable. It is notable that neither the procedure regarding hand-wash was conducted at the place of incident nor any witness present at that place was made a witness by the prosecution, moreover, in view of the fact that the prosecution has come up with the case that during the trap proceedings no obstruction was created by anyone at the place of occurrence. Even if recovery be accepted, just for the argument sake, then also it shall have no outcome as the demand has not been proved by the prosecution.
[SECTION]9. The pre-trap memorandum proceeds to record that all the demonstrations were made in presence of the independent witnesses PW-4 and PW-5 and Shri [ENTITY], PW-6 but the same is negated by the testimony of PW-5, who categorically stated that PW-6 was not present at the time of pre-trap proceedings. The pre-trap memorandum was prepared by T.L.O. between 07:[SECTION]0a.m. to 08:[SECTION]0a.m. at C.T.X. guest house on 28.05.2009 in presence of witnesses and representative of the complainant but PW-6 has specifically stated that he reached the guest house around 8-8:[SECTION]0a.m., which indicates that by the time he reached, the pre-trap proceedings were over. The independent witness PW-5 has stated that he met PW-6 on 29.05.2009 at 09:00a.m. The presence of PW-6 at the time of pre-trap proceedings is not established, falsifying the version of [ACT] regarding the same being prepared in presence of independent witnesses and PW-6 Shri [ENTITY], who claimed to see and signed the complaint at the time when he reached the guest house, and also expressed his ignorance about the genuineness of the complaint. Thus, the authenticity of pre-trap proceedings as well as the complaint appears to be highly doubtful.
40. The next issue to be dealt with is preparation of post trap memorandum after the alleged incident of trap of the appellant. In this context, statement of alleged independent witnesses is of more concern as PW-4 has categorically stated in his cross examination that pre-trap and post trap memorandum were prepared in the guest house after the arrest of the appellant. Similarly, PW-5 has stated that pre-trap and post trap memorandum were not prepared in his presence as he left for D.R.M. Office and when he returned from the office in the guest house, all the documents were already prepared and accordingly signed by the witnesses. Concisely, it can be concluded that the preparation of pre-trap memorandum, as well as, post trap memorandum is highly suspicious and it cannot be accepted that both have been prepared as per the procedure laid down in presence of the independent witnesses, complainant and the team members of [ACT]
41. Further, it has to be considered whether the appellant was in a position to do any favour to the complainant for which he should have demanded illegal gratification. The testimony of PW-1 Shri [ENTITY] clearly refers to the fact that the appellant was not in any capacity to provide any benefit to M/s [ENTITY] because he was merely a Clerk and all the functions in this respect were performed by Purchase Officer. The job of the appellant was only to put up or present the file before the concerned authority. There is no evidence contrary to the same, which may establish that it was only the appellant who was in a position to favour or disfavour the appellant as such there arise no occasion for the appellant to demand illegal gratification from the complainant.
42. A unique fact in this case, which discloses unauthencity of the proceedings conducted by the prosecuting agency is a letter written by Shri [ENTITY], T.L.O. to his superior disclosing the false trap proceedings and expressing his displeasure on the same. This letter has been produced by the appellant in evidence though, it may not be given weight on account of its evidentiary value, but it do raise a question regarding the alleged trap proceedings. The appellant has examined himself as DW-8 and categorically stated that he was very much present in the office till the evening from where he was taken by the [ACT] team and implicated in the present case. This also may contribute as an important factor questioning the authenticity of the entire proceedings.
4[SECTION]. Another important factor is that the team constituted for the trap proceedings consisted of Shri [ENTITY], Inspector, Shri [ENTITY], Inspector, Shri [ENTITY] and Shri [ENTITY] and Shri [ENTITY], T.L.O. but except the T.L.O. no one else has been examined by the prosecution. Moreover the person specifically mentioned in the written complaint namely Shri [ENTITY] has neither been implicated as accused nor produced as witness, in the entire investigation his statement has also not been recorded, which again raises a question regarding the truthfulness of the entire proceedings.
44. Lastly, [SECTION] of the Act may also be taken into consideration, which reads as under:
"20. Presumption where public servant accepts gratification other than legal remuneration. (1) Where, in any trial of an offence punishable under [SECTION] or [SECTION] or [SECTION] or [SECTION] 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] or, as the case may be, without consideration or for a consideration which he knows to be inadequate."
45. Qua [SECTION] 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] and not to those under [SECTION] 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] of the Act would also not arise.
46. It is well settled that the presumption to be drawn under [SECTION] is not an inviolable one. The accused charged with the offence could 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 received the amount towards gratification.
47. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under [SECTION] of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. 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 of proof 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 under [SECTION] under the [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 verdict of guilt. 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 shifts to 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.
48. To sum up, demand of bribe by the appellant to the complainant as well as to PW-6 has not been established by the prosecution, acceptance and recovery of the same has also not been proved as the testimony of the independent witnesses could not be treated as trustworthy because of there being under pressure of [ACT] and the inconsistency in testimony of witnesses do not substantiate the pre-trap and post trap proceedings. The lodging of the first information report as alleged appears to be dicey and gives a grim picture of entire proceeding, more so, in light of the conduct of the complainant (PW-2), who has made such other complaints also and PW-6 representative of the PW-2, has admitted that this is the modus operendi of PW-2 Shri [ENTITY] to get his work done. The appellant has created a preponderance of probability in favour of his case that he was picked from his office and implicated in a false case.
49. Thus, on the basis of analysis made herein above, this Court is of the view that the trial court's finding on the point of holding guilty the accused appellant for the offence under [SECTION] and [SECTION] of [ACT] is not in accordance with the evidence and law and the same is not sustainable, and the appeal filed by the appellant is liable to be allowed.
50. For all the reasons stated above, the appellant is entitled to the benefit of doubt and accordingly is entitled to acquittal.
51. In the result, the appeal is allowed and the judgment and order dated 14.08.2015 passed by learned Special Judge, [ACT], Court No.1, Lucknow in [CASE NUMBER] is hereby set aside. Appellant [ENTITY] is acquitted on benefit of doubt of the charges levelled against him.
52. Appellant [ENTITY] is on bail. He need not surrender. His bail bonds and sureties stand discharged.
5[SECTION]. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgement to the court concerned forthwith.
Order Date:-14.5.2018 Anupam S/-
([ENTITY],J.)