HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench :Hon'ble Shri Radhe Shyam Sharma,_J, Criminal AopealNo.1577 of 1996 ApeeHant Vs. Respondent Ajay Kumar Shrivastava, son of late Shri Chandra Mohan Shrivastava (under suspension) Branch Manager, Bilaspur Raipur Kshetriya Grameen Bank, Branch, District Bilaspur R/o L.I.G. 36 Tatibandh, Raipur (M.P.) (now State of Chhattisgarh) State of Madhya Pradesh (Now State of Chhattisgarh) Through C.B.I., Jabalpur Criminal Appeal under Section 374(2) Cr.P.C. Present: Smt. Indira Tripathi, counsel for the appellant. Shri Vivek Shrivastava, counsel'for the respondent/C.B.I. ORAL JUDGIVIENT (Delivered on 18thNovember, 2011) The instent appeal preferred by accused/appellant Ajay Kumar Shrivastava is directed against judgment dated 18 September, 1996, passed by the Fifth Additional Sessions Judge and Special Judge (C.B.I.), Jabalpur, in Special Case No.7/89, whereby the Special Judge has convicted the appellant under Section 7 of the Prevention of Corruption Act, 1988 (henceforth 'the Act, 1988') and sentenced to undergo Rl for six months and to pay fine of Rs.500/-, in default, to further undergo'Rt for three months and unqler Section 13(1)(d)/13(2) oftheAct, 1988 sentenced 'to undergp Rl.^or one year and to pay fine of Rs.1,000/-, in default, to further uridergo Rl for three montfis. i • . 2. ' Case ofthe prosecution, in brief, is as under: The appellant was:working as Branch Manager in Bilaspur-Raipur Kshetriya Grameen Bank, Branch Bandha, District Bilaspur in the year -;..';"3s3a8!sa. ;: ;,..a>» '""•'SiSgs^^' 1989. Complainant Shalig Ram (PW-3) made a complaint (Ex-P/2) to the Dy. Superintendent of Police, Lokayukta, Bilaspur stating that he belongs to Gond Tribe. He had submitted an application (Ex-P/4) for obtaining loan for the purpose of opening a bicycle-shop. In this regard, the complainant approached the appellant. The appellant demanded bribe of Rs.200/-. The complainant was not inclined to satisfy the demand of bribe. He made the complaint (Ex-P/2) against the appellant in the Lokayukta Office, Bilaspur with the help of Jawahar (PW-2). Dy. Superintendent of Police, Lokayukta forwarded the complaint to Inspector S.S. Gour (PW-7) for taking necessary action. On the written complaint (Ex-P/2), First Information Report (Ex-P/15) was lodged by Dy. Superintendent of Police, Lokayukta and he directedlnspector S.S. Gour (PW-7) for taking action and for arranging trap-proceedings. A pre-trap demonstration was arranged, wherein solutiori'bf Sodium Carbonate was prepared in a glass. On dip of a water paper, colour ofthe solution did not change. Thereafter, another piece of paper containing phenolphthalein powder was again dipped into'the solution of Sodium Carbonate which turned the solution into pink colour. Panchnama of pre-trap was prepared vide Ex-P/6. After giving such demonstration, the complainant was asked to present currency notes of Rs.200/-, which were submitted by him, on which phenolphthalein powder was smeared and thereafter the said notes were kept in the pocket of Shalig Ram (PW-3). The complainant was also informed and guided as to how the"trap would be arranged and as to the role which W was required to play in the trap proceedings. Numbers ^ / given iri tfte eurrency notes were recorded in pre-trap Panchnama (Ex- ^s-, P/6). After preparing pre-trap Panchnama (Ex-P/6) and arranging pre-trap proceedings, the trap-team proceeded towards Village Bandha, where the complainant was asked by the appellant to come with bribe money of --Qs.200/-. Ttie cpmplainant was asked by the trap-team to proceed to the i )> spot, i.e. Bilaspur-Raipur Kshetriya Grameen Bank, Branch Bandha, for giving the bribe and members of the trap-team gathered around the Bank at different places in order to witness the incident. The complainant gave currency notes of Rs.200/- to the appellant, after receiving the trap-signal, members of the trap-team reached the spot immediately and caught hold of the hands of the appellant. The trap-team seized the currency notes from the appellant. The notes seized from the appellant were compared with pre-trap Panchnama (Ex-P/6). Trgp-Panchnama was prepared vide Ex-P/9. Right hand of the appellant was washed in the solution of Sodium Carbonate, which turned into pink colour. Thereafter, the solution was kept in a bottle and sealed. Another solution of Sodium Carbonate was prepared, in which, hands of the complainant were washed, which also turned into pink colour. Thereafter, the solution was kept in another bottle and sealed. Loan application (Ex-P/4 & 5) and Cheque-Collection Register were also seized vide Ex-P/8. Posting order (Ex-P/11), Transfer order (Ex-P/12) and memo ofjoining (Ex-P/13) were also seized vide Ex- P/8. Statementsof witnesses were recorded. Spot-map (Ex-P/16) was prepared. Seized solution was sent for examination to Forensic Science Laboratory, Sagar. Report (Ex-P/10) was received from the office of Director, FSL, Sagar. Ex.P/10 reported positive about the test containing the wash of right hand of the appellant and the wash of the hands of the complainant. As the offence was arising within the jurisdiction of CBI, the case was transferred to CBI, Jabalpyr; After receiving the case, th~e CBI, Jabalpur lodgec^' Firsl Information Report (Ex-P/14) on 20.10.1989. After obtaining sanctjon for prosecution (Ex-P/1) against the appellant, charge ~a»i~, sheet was filed before the Special Judge, CBI, Jabalpur. i • : The learnect Special Judge, Jabalpur framed charges against the appellant under Sectioris 7 and 13(1)(d)/13(2) of the Act, 1988. After ^ppr6ciation; of the evidence available on record, the learned Special 'a ^' Judge convicted and sentenced the appellant as mentioned above in first para of this judgment. 3. Heard learned counsel for the parties and perused the material available on record. 4. Smt. Indira Tripath{, learned counsel appearing for the appellant argued that the prosecution has failed to prove the offence of demand of illegal gratification by clinching evidence, which is sine qua non for convicting the appellant under Sections 7 and 13(1)(d)/13(2) of the Act, 1988. To prove the same, presumption cannot be drawn against the accused/appellant. She further submitted that even if the presumption is raised as per Section 20 of the Act, 1988, the appellant has established his case that he has not accepted the illegal gratification. She further submits that complainant Shalig Ram (PW-3) and Jawahar (PW-2) have not supported the case ofthe pfosecution and they have been declared to be turned hostile. She further sybmits that it is necessary for the prosecution to satisfy and establish that all the ingredients of Sections 7 and 13(1)(d) of the Act, 1988 have been made out before convicting the appellant. She further submits that the impugned judgment is not sustainable in the eyes of law. She placed reliance on Banarsidas vs. State of Haryana (2010) 4 SCC 450, C.M. Girish Babu Vs. CBI Cochin, High Court of Kerala (2009) 3 SCC 779, Asha Verma and others Vs. State of M.P. (Now State of CG), (2011) CGLJ 374 and Bharath Ram Vs. State of C,G (2011) 3 CGU 271. >. / 5. On the other hand, ^hri Vivek Shrivastava, learned counsel qppearing for the respondent/CBI supported the impugned judgment and submitted that the prosecution has adduced clinching and reliable evidence against the appellant. Bribe money was recovered from the --___apgellant. Right hand of. the appellant was washed in the Sodium ? 3 '*y Carbonate solution, which turned into pink colour. Therefore, there is presumption against the accused/appellant, because acceptance of the amount is not disputed by the appellant. In view of the provision of Section 20(1) of the Act, 1988, the appellant is liable to be convicted. He relied on Krishna Ram Vs.State of Rajasthan (2011) 11 SCC 707,State represented by CBI, Hyderabad Vs. G. Prem Raj (2010) 1 SCC 398, Subbu Singh Vs. State by Public Prosecutor (2009) 6 SCC 462, State of Andhra Pradesh Vs. P. Satyanar&yana Moorthy (2008) 9 SCC 674 and V. Radhakrishna Reddy Vs. State of Andhra Pradesh (2005) 10 SCC417. 6. Learned Special Judge observed in para 24 of the impugned judgment that complainant Shalig Ram (PW-3) is a rustic villager and belongs to Gond caste and hewas influenced by the appellant. He further observed in para 25 of the impugned judgment that the appellant had demanded Rs.200/- from the complainant for sanctioning loan, which is illegal gratification and the learned'' Special Judge has convicted the appellant under Sections 7 and 13(1)(d)/13(2) oftheAct, 1988. 7. S.S.Gour (PW-7) deposed that on 21-8-1989, the complaint (Ex.P- 2) was forwarded by Deputy Superintendent of Police (Lokayukta) to him. The complaint (Ex. P-2) was made by Shalig Ram(PW-3) stating that he had submitted an application (Ex. P-4) for loan for opening a bicycle shop. The complainant approached the appellant for this purpose-and the appellant demancted bribe of Rs:200/-. On the basis of Ex.P-2, he lodged First Information Report (Ex.P-15). He further deposed that he had called ~a^., two independent witnesses and a pre-trap demonstration was arranged. Thereafter, the complaina.nt was asked to present currency notes. The complainant submjtted two currency notes in the denomination of Rs.100/- each. The numbersgiven in the currency notes were also recorded in the .,15-A .c n Pre-trap Panchnama (Ex.P-6). Phenolphthalein powder was smeared on the currency notes and kept in the pocket of the complainant. He further deposed that the complainant was informed and guided that he would have to give the currency notes to the appellant only on being demanded by him. K.R.Dixit (PW-5)'also deposed in similar fashion. 8. S.S.Gour (PW-7) deposed that after completion of arrangement of pre-trap proceedings, the trap-team proceeded to Village Bandha. The complainant was asked to proceed on the spot, i.e., Bilaspur-Raipur Kshetriya Grameen Bahk for giving bribe to the appellant. The complainant Shalig Ram (PW-3) entered the Bank and after two minutes, he came out of the Bank and gave a signal to the trap-team. Thereafter, the trap-team entered the Bank. Inspector Toppo caught hold the hand of the appellant and recover-ed' the two currency notes and compared numbers thereof with the^numbers mentioned in the Pre-Trap Panchnama (Ex.P-6). The numbers of the recovered currency notes and the numbers of the currency notes mentioned in Ex. P-6 were found to be similar. Solution of Sodium Carbonate was prepared and the right hand of the appellant was washed in the solution of Sodium Carbonate, which turned into pink colour. Thereafter, the solution was kept in a bottle and the bottle was sealed and another solution of Sodium Carbonate was prepared. The recovered currency notes were dipped into the solution. On dipping the notes, the solution turned into pink colour, which was kept in another bottle and the bottle was sealed. Seizure of the currency notes was madQ. /K.R.Dixit (PW-5) deposed in similar fashion. ~»te 9. Now, it is to be seen whether from the evidence of the above prosecution witnesses, it is proved that the appellant had made demand of bribe of Rs.200/- from the complainant Shalig Ram (PW-3) and accepted the bribe frgm him. 7 10. In Suraj Mal vs. State (Delhi Administration), (1979) 4 SCC 725, 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. 11. In C.M.Girish Babu vs. CBI, Cochin, High Court of Kerala (supra), the Hon'ble Supreme Court observed thus: "18. In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725, 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 voluntal'ily accepted the money knowing it to be bribe. f 22. • It is equally well settled that the burden of proof placed upon the accuged person against whom the presumption is made under Section 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 requiredto discharge that burden by leading evidence to prove his case beyond a reasonable dBubt. That is, of course, the test pre^cribgd in deciding whether the prosecution has discharged '!ts/onus to prove the guilt of the accused; but the same test cannot be appliecl^ato an accused person who seeks to discharge the burden placed upon him under Section 4(1) of the-Prevention of Corruption Act. It is sufficient if the accused persdn' succeeds in proving a preponderance of probability in favour of hiscase. It is not necessary for the accused person -—- t6 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 \.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." (emphasis supplied) (See V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 at AIR p. 1764, para 4.) 12. In State of Kerala and anoth6r vs. C.P.Rao, (2011) 6 SCC 450, the Hon'ble Supreme Court observed thus: "7. 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 v. Stefe of Maharashtra, (1979) 4 SCC 526, wherein a three-Judge Bench ofthis Court held that when ther& was no corroboration of testimony of the complainant regarcfing ttte 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.) 10. In C.M. Girish Babu v. CBI, (2009) 3 SCC 779, this Court while dealing with -the case under the Prevention of Corruption Act, 1988, by referring to its previous decision in SurajMalv.State (Delhi Admn.), (1979) 4 SCC 725, held that mere//recovery of tainted money, divorced from the circumstances underwhich it is paid, is not sufficientto convict 73^~. 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, convtetion cannot besustained. (See SCC para 18.) .-c^. 11. In a subsequent decision of this Court also under the Preveniton of Courruption Act, in A. Subairv. State of Kerala, (2009) 6 SCC 587, 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 18-19which 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. 19. 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, tberefQrg; to be held that the best evidence to prove the demand was not made available before the court." ;. 12. 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 ofthe aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the Hith'fcourt." . 13. Shalig Ram (PW-3) deposed that the appellant was posted as Branch Manag&f in the Bilaspur-Raipur Kshetriya Grameen Bank, Branch Bandha. He contacted the appellant for sanction of his loan. The appiellant told hirri that loan for only a sum of Rs.5,000/- could be ^s'-ysc I;'1" 10 sanctioned to him. He further deposed that the appellant had never demanded Rs.200/- as bribe from him. He did not give the appellant bribe of Rs.200/-. Lokayukta-Team did not catch the appellant with bribe- money before him. He did not get any complaint written from Jawahar (PW-2) regarding demand of bribe of Rs.200/- by the appellant from him. He further deposed that hetiad given Rs.200/- to the appellant for opening an account in the Bank. He further deposed that it is true that on the date of incident, he had gone to the Bank for the purpose of opening an account in the Bank. It is truethat on that date the appellant had told him that since that day was a non-business day, therefore, account could not be opened in the Bank. It is true that on this, he had said the appellant to keep his form and sum of Rs.200/- with him because he will not be able to come to the Bank tomorrow. 14. Jawahar (PW-2) depps^d that it is not true that he had written the complaint (Ex. P-2) as narrated by the complainant Shalig Ram (PW-3) in the village. In cross-examination, he''deposed that Shalig Ram (PW-3) came to him and told him that he had obtained a loan and had to open an account in the Bank. Shalig Ram (PW-3) had not made any complaint against the appellant. 15. Having examined the evidence of the complainant Shalig Ram (PW-3) and Jawahar (PW-2), 1 fjnd that they have failed to support the case of the prosecution by deposing.to the effect that the appellant did not demand any money nor talk anything about the money. The rest of the eviderice oo f-ecord though brings out the fact of recovery of the currency ^i- notes from the right side pocket of the appellant and on his hands being : - [ • tested in solution of Sodium Carbonate, phenolphthalein was found to be positive yetthey themselves are not sufficient to hold that the appellant did demand illegal gratification of Rs.200/- from the complainant and received ,<;,;£®?3 ^ '-' ^. ;-. 11 the same. Since the complainant Shalig Ram (PW-3) and Jawahar (PW- 2) do not speak about the demand made by the appellant, 1 am of the view that the evidence of the other witnesses placed on record cannot in any way help the prosecution in order to establish the demand made by the appellant. 16. 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. . 17. So far presumplion under Section 20 ofthe Act, 1988 is concerned, it is well settled that the presumption to be under Section 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 received the amount towards gratification. It isequally well settled that the burden of proof upon the accused person agajnst whom the presumption is made under Section ^O 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 ^ Bini/Gopal 12 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 ofthe accused beyond a reasonable doubt. 18. In the instant case, the prosecution has utterly failed to prove the demand and acceptance of bribe by the appellant from the complainant. Mere recovery of money from the appellant by itself cannot prove the charge of the prosecution against the appellant in the absence of evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. 19. I have perused all the judgments cited by learned counsel appearing for the respondent/CBI, however, I find that the same are not relevant to the facts involyed in the instant case. 20. For the foregoing reasons, the impugned judgment of conviction and sentence is set aside and th& appeal is allowed. The appellant is acquitted of the charges framed against him. Presently, he is on bail. His bail bonds are cancelled and suretystands discharged. -- -. -___ Sd/- ILS.SIiarma Judge ». / IIJUil