Hari Charan Rajak vs The State Of Jharkhand Through A.C.B. ... on 22 December, 2021

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Jharkhand High Court

Hari Charan Rajak vs The State Of Jharkhand Through A.C.B. ... on 22 December, 2021

2. This criminal appeal has been filed against the judgment of conviction dated 20.02.2020 and order of sentence dated 29.02.2020 passed by learned Special Judge Vigilance (A.C.B), Hazaribag in Special Vigilance Case No.15 of 2017 by which the learned court below has held the appellant guilty for having committed the offences punishable under Sections 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and he was sentenced to undergo rigorous imprisonment for four years with fine of Rs.6,000/- under Section 7 of the Prevention of Corruption Act, 1988 and in default of payment of fine, to undergo simple imprisonment for six months and he was further 1 Cr.Appeal (SJ). No.302 of 2020 sentenced to undergo rigorous imprisonment of six years under Section 13 (2) of the Prevention of Corruption Act, 1988 with fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment of twelve months and it was directed that both the sentences shall run concurrently.

3. The case of the prosecution in brief is that the complainant submitted a written complaint to the Superintendent of Police, Anti- Corruption Bureau, Hazaribag alleging therein that the appellant-convict- who was a Panchayat Sevak; demanded Rs.6,000/- as illegal gratification for making the final payment of the complainant in respect of constructing a culvert. As the complainant was not intending to pay the illegal gratification hence he reported the matter to the said Superintendent of Police. Sri Ram Paswan- Inspector of Police (P.W.3) posted in the Anti- Corruption Bureau, Hazaribag was deputed for verification of the complaint. The P.W.3 accompanied the complainant to the panchayat Bhawan at Jangi and heard the appellant-convict demanding ₹ 6000/- from the complainant for making the payment of the complainant relating to the work of construction of the culvert but later on the appellant- convict scaled down the demand of illegal gratification amount to ₹ 5000/- and it was agreed to between the appellant-convict and the complainant that the complainant will make the said payment of ₹ 5000/- on 30.12.2016. After verification of the complaint, the P.W.3 submitted his report confirming the demand of illegal gratification by the appellant- convict as alleged in the written complaint submitted by the complainant. On the basis of the report submitted by P.W.3, the FIR of this case was registered. Investigation of the case was entrusted to Laxman Singh (P.W.8). A trap was successfully conducted on 30.12.2016. The appellant- convict was caught red-handed while accepting the bribe amount of Rs. 5000/-. After completion of investigation, charge-sheet for the offences punishable under Section 7 as well as 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 was submitted against the appellant-convict. Separate charges for the offences punishable under Section 7 and 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 were framed against the appellant-convict to which he pleaded not guilty and thus was 2 Cr.Appeal (SJ). No.302 of 2020 put to trial.

4. In support of its case, the prosecution altogether examined 8 witnesses and 3 witnesses were examined by the defence. Besides the oral testimonies, various documents were proved by the prosecution and the defence; which were marked exhibits.

5. Out of the witnesses examined by the prosecution, P.W.1 Indu Bhusan Ojha was a member of the raiding team. He has stated about the constitution of the raiding team. He further stated about the pre-trap preparations in detail. He then stated that on 30.4.2016 at 9.45 AM the members of the trap team arrived at Simaria square. The complainant talked with the appellant-convict over phone. The appellant-convict told that he will come near the 8 miles of Simaria-Chatra Road. At 10.30 a.m. the members of the trap team reached the passenger shed on Simaria- Chatra Road. At about 11.00 AM the appellant-convict came from Chatra side on his motorcycle and stopped his motorcycle near the complainant who was standing at a distance of 10 steps ahead of the passenger shed towards Simaria, and went near the complainant. The P.W.1 was witnessing the entire occurrence sitting in the passenger shed. The appellant-convict demanded the bribe amount from the complainant. At which the complainant brought out the bribe amount from his pocket and handed over the same to the appellant-convict and the appellant-convict took the bribe money by his right hand and counted the money using both his hands and thereafter kept the money in the left side pocket of his full pant. At this the complainant gave the predetermined signal and the members of the trap team without any delay reached near the appellant- convict. The P.W.2 and the P.W.1 caught hold of the right and left hand respectively of the appellant-convict over his wrist. On being asked the appellant-convict disclosed his identity. Both the hands of the appellant- convict were washed with the sodium carbonate solution. The colour of the solution turned pink. Thereafter it was asked from the appellant- convict as to where he has kept the bribe money. The appellant-convict disclosed by signaling that the money has been kept in the left pocket of his full pant. The independent witness brought out the bribe money from 3 Cr.Appeal (SJ). No.302 of 2020 the pocket of the appellant-convict consisting of 2 currency notes of ₹ 2000/- denomination each and 10 currency notes of ₹ 100/- denomination each. Upon the number of the recovered notes being compared with the number of the notes mentioned in the pre-trap memorandum, the numbers tallied. The P.W.1 also stated in detail about the post trap formalities and also proved the documents which bore his signature. The file relating to the work was demanded from the appellant-convict and the appellant- convict brought out the file from the Dickey of the motorcycle and produced the same. The file was seized and the appellant- convict was arrested. In his cross-examination the P.W.1 has stated that when the appellant-convict arrived at the place of occurrence, the P.W.1 was at a distance of 10 steps. There was a conversation between the appellant-convict and the complainant at the place of occurrence and the appellant-convict demanded the bribe money from the complainant. He denied the suggestion of the defence that in his presence the complainant did not give the bribe amount to the appellant-convict.

It is pertinent to mention here, that there is absolutely no cross- examination of the P.W.1 regarding his testimony made in his examination in chief to the effect that he heard the appellant-convict demanding the bribe amount from the complainant and the appellant- convict produced the file relating to the work of the complainant by bringing out the same from the Dickey of his motorcycle.

6. P.W.2 - Pran Ranjan Kumar was also a member of the trap team. Besides proving his signatures over the documents, the P.W.2 has deposed about the institution of the FIR; consequent upon verification of the complainant by the P.W.3. He has also stated about the pre-trap preparations in detail. He further stated that at about 11.00 AM the appellant-convict came by his motorcycle to the place of occurrence and on meeting the complainant demanded bribe amount which was given by the complainant to the appellant-convict. The appellant-convict counted the money by both his hands and kept the same in his left pocket. Upon the complainant giving the predetermined signal, P.W.1 and P.W.3 caught hold of the right and left hand of respectively of the appellant-convict. On 4 Cr.Appeal (SJ). No.302 of 2020 being asked; the appellant-convict disclosed his identity. One by one the hands of the appellant-convict were washed with sodium carbonate solution and the colour of the solution turned pink. On being asked the appellant-convict disclosed that he kept the bribe amount in the left pocket of his pant. The shadow witness recovered the bribe money. The numbers of recovered notes were compared with the number of notes mentioned in the G.C. memorandum and the same tallied. The left pocket of the pant of the appellant-convict upon being washed with the sodium carbonate solution, the colour of the solution turned pink. He also deposed about the post trap formalities. In his cross-examination the P.W.2 had stated that he was leading the trap team. He further stated that at the place of occurrence the appellant-convict was asked about the recovered money; at which the appellant-convict disclosed that the same was the bribe amount. He denied the suggestion that he did not state before the Investigating Officer that upon reaching the complainant, the appellant-convict demanded the bribe amount.

It is pertinent to mention here, that there is absolutely no cross- examination of the P.W.2 regarding his testimony made in his examination in chief about the demand, acceptance and recovery of the bribe amount by the appellant-convict.

7. P.W.3 Shriram Paswan is the verifying officer of the complainant submitted by the complainant as well as a member of the trap team. He has deposed about the complaint made by the complainant. He further stated that the Jr. Engineer gave the measurement book relating to the work of the complainant to the appellant-convict, who was the Panchayat Sevak. As per the order of the Superintendent of Police, he was entrusted the job of verification of the allegations made in complaint by the complainant. The order for verification on the complaint of the complainant is under the handwriting and signature of the Superintendent of Police (vigilance) Amarnath Mishra. He also proved the documents which bore his signature. During the course of verification on 28.12.2016 at the panchayat Bhawan at Jangi, the complainant requested the appellant-convict to do his work, at which the appellant-convict asked 5 Cr.Appeal (SJ). No.302 of 2020 the complainant to pay ₹ 6000/-which the appellant-convict earlier told him to give and then only the appellant-convict would hand over the cheque to the complainant. At this, the complainant pleaded his inability to pay the huge amount of money and requested to reduce the bribe amount. Then the appellant-convict told the complainant to pay ₹ 5000/- and to take his cheque. The complainant told that he was not having the money with him and requested the appellant-convict to prepare the cheque which the complainant would take one or two days after, on giving the money. Then the appellant-convict told the complainant to give the money on 30.12.2016 and to take his cheque. The appellant-convict at that time filled up the cheque but kept the cheque with him. The P.W.3 heard all these conversations between the complainant and the appellant- convict by standing near the window of the office of panchayat Bhawan. The P.W.3 has also deposed in detail about the pre-trap preparations. He further stated that at 9:45 AM the members of the trap team reached Simaria More. The complainant talked to the appellant-convict over phone and the appellant-convict told the complainant to reach the Koudi More and said that the appellant-convict would reach there also. The members of the trap team took their respective position at Koudi More. The appellant-convict reached Koudi More by his motorcycle. The complainant was standing at the passenger shed. The appellant-convict went there and asked whether the complainant has brought the money at which the complainant brought out the bribe money from his pocket and handed over the same to the appellant-convict. The appellant-convict counted the money by using both his hands and kept the money in the left side pocket of his full pant. The complainant gave the predetermined signal of scratching his hair. Upon receiving the signal, P.W.3 and the P.W.1 caught hold of the right and left wrist respectively of the hands of the appellant-convict. After verifying the identity of the appellant-convict, the fingers of his hands were washed with sodium carbonate solution, one by one. The colour of the solutions turned pink. He also described in detail about the post trap formalities. On being asked, the appellant- convict disclosed that he kept the bribe money in the left side pocket of his 6 Cr.Appeal (SJ). No.302 of 2020 full pant. The shadow witness P.W.4 brought out the money consisting of two notes of ₹ 2000/- denomination each and 10 notes of ₹ 100/- denomination each from the pocket of the appellant-convict. Upon verification of the numbers of the notes seized; with the numbers of the notes in the G.C. notes memorandum, the numbers tallied. Upon the left side pocket of the appellant-convict being washed with sodium carbonate solution, the colour of the solution also turned pink.

In his cross-examination the P.W.3 stated that the Superintendent of Police Mr. Amarnath Mishra is alive. He has not seen the giving and taking of money in his own eyes. He denied the suggestion of the defence that the appellant-convict did not ever demanded bribe and that the appellant-convict has never taken the bribe. It is pertinent to mention here, that there is absolutely no cross-examination of the P.W.3 in respect of his testimony given by him in his examination in chief to the effect that he heard the appellant-convict demanding money of ₹ 6000/- and subsequently scaling down the same to ₹ 5000/-during the course of the verification of the complaint of the complainant.

8. P.W.4 Prabhakar Mishra is an independent shadow witness. He deposed about the complaint made by the complainant. He further stated that the members of the trap team assembled near Koudi More. There was some discussion between the complainant and the appellant-convict, who came by a motorcycle. The complainant gave the illegal money to the appellant-convict. The P.W.1 and P.W.3 caught hold of both the hands of the appellant-convict. The P.W.4 brought out the money from the left pocket of the appellant-convict. Upon counting the same was found to be ₹ 5000/- consisting of two notes of ₹ 2000/- denomination each and 10 notes of ₹ 100/- denomination each. Upon both the hands of the appellant-convict being washed the colour of the solution turned pink. Upon the pocket of the pant of the appellant-convict being washed, the colour of the solution also turned pink. He has also stated about the post trap formalities in detail. Upon the number of the notes being compared with the numbers mentioned in the G.C.notes memorandum, the same tallied. He also proved the documents, which bore his signature.

Cr.Appeal (SJ). No.302 of 2020 In his cross-examination the P.W.4 stated that when the P.W.1 and P.W.3 were holding the hand of the appellant-convict, the P.W.4 was at a distance of 40-50 feet. It is pertinent to mention here that there is absolutely no cross-examination of the P.W.4 regarding his testimony made in his examination in chief to the effect that after a conversation between the complainant and the appellant-convict, the complainant handed over the illegal money to the appellant-convict.

9. P.W.5 Sourav Das Gupta is the other independent witness. He deposed about the pre-trap preparations. He further deposed that on 30.12.2016 he along with the members of the trap team reached 8 miles Koudi More at about 10:30 AM. He saw personnel of Anti-Corruption Bureau were catching hold of the hands of the appellant-convict. The hands of the appellant-convict were washed with the solution upon which the colour of the solution turned pink. The appellant-convict had kept the bribe money in the left side pocket of his pant. The P.W.4 brought out the bribe money from the pant of the appellant-convict. Upon the numbers of the notes being compared the same tallied. The pant of the appellant- convict was also washed and the colour of the solution turned pink. He also proved his signatures on various documents which were marked exhibits.

In his cross-examination, the P.W.5 has stated that he has not seen the occurrences of giving and taking or the conversations which took place; before the personnel of Anti-Corruption Bureau caught hold of the appellant-convict. He has not seen anybody demanding or taking bribe.

10. P.W.6 Birendra Kumar Yadav is the complainant of this case. He has deposed that he has instituted this case against the appellant-convict. The appellant-convict was not issuing the cheques of final payment of the work of construction of culvert done by the complainant. The appellant- convict was demanding about ₹ 6000/-. He made a written complaint in this respect to the Anti-Corruption Bureau. He proved his signature on the typed application which was marketed Exhibit-11. After submitting his complaint, the personnel of Anti-Corruption Bureau contacted him 8 Cr.Appeal (SJ). No.302 of 2020 and told him to call the appellant-convict over phone. The appellant- convict came. The team of Anti-Corruption Bureau gave money to him to be given to the appellant-convict. The P.W.6 gave the money to the appellant-convict. Thereafter the team of Anti-Corruption Bureau caught hold of the appellant-convict. He identified the appellant-convict in the court. The P.W.6 was declared hostile and even though the prosecution put leading questions to him, he did not support the case of prosecution any further.

In his cross examination the P.W.6 has stated while putting his signature on the Exhibit 11 nothing was typed on the sheet of paper and he did not give any bribe to anybody for payment of his work relating to the program. He further stated that there used to be delay in payment. He denied the suggestion of the defence that he never gave any bribe to the appellant-convict and he also denied the suggestion that the personnel of Anti-Corruption Bureau never recovered the bribe money from the appellant-convict. He also denied the suggestion of the defence that he is deposing falsehood to entangle the appellant-convict in a false case.

11. P.W.8 Laxman Singh is the investigating officer of this case. He stated about the institution of the case. He constituted the trap team and got the same approved by the Superintendent of Police. He had stated in detail about the pre-trap preparations and also the contents of the complaint submitted by the complainant. He also proved the relevant documents. The allegations made in the complaint were found true during the verification made by Sriram Paswan (P.W.3). The complainant produced the bribe amount to be given to the appellant-convict consisting of 2 currency notes of ₹ 2000/- denomination each and 10 currency notes of ₹ 100 /- denomination each. The trap team reached Simaria More and the members of the team took their respective position. The appellant- convict came to the place of occurrence by his motorcycle and straightaway went to the complainant and enquired as to whether the complainant has brought the money. At this the complainant brought out ₹ 5000/- from his pocket and handed over the same to the appellant- convict. The appellant-convict took the said money by his right hand and 9 Cr.Appeal (SJ). No.302 of 2020 counted the money by using both his hands and kept the said money in the left side pocket of his full pant. Upon getting the signal from the complainant, the members of the trap team reached the place of occurrence without any delay. P.W.3 and P.W.1 caught hold of the hands of the appellant-convict on his wrist. On being enquired, the appellant- convict disclosed his name and identity. The P.W.8 has also stated about the post trap formalities in detail and also stated that upon the hands of the appellant-convict being washed with sodium carbonate solution, the colour of solution turned pink. On being asked, the appellant-convict disclosed that he has kept the bribe amount in the left side pocket of his full pant. The P.W.4 brought out the bribe money consisting of 2 currency notes of ₹ 2000/- denomination each and 10 currency notes of ₹ 100/- denomination each. The number of the currency notes seized tallied with the numbers mentioned in the pre-trap memorandum. The P.W.8 also seized the necessary articles and documents including the 2 cheques drawn in favour of the complainant and his associate; as also the certificate regarding the program having been completed bearing the initials of the Jr Engineer. The P.W.8 recorded the statement of the witnesses and upon completion of investigation submitted charge sheet in the court. He also identified the appellant-convict in the court.

In his cross-examination the P.W.8 has stated that the writing on Exhibit 49 which is the cheque drawn in favour of the complainant, is in the handwriting of the appellant-convict. At the place of occurrence the P.W.3 and the shadow witness were standing nearest to the P.W.8.

12. P.W.7 Arjun Gope is a formal witness. He produced the material exhibits being the currency notes seized in connection with this case consisting of 2 currency notes of ₹ 2000/- denomination each and 10 currency notes of ₹ 100/- denomination each in court.

In his cross-examination the P.W.7 has stated that he was not personally associated with this case.

Besides the oral testimony, the prosecution also proved the 2 cheques which are prepared by the appellant-convict upon being assured of being paid the bribe amount of ₹ 5000/- by the P.W.6, which were also 10 Cr.Appeal (SJ). No.302 of 2020 marked exhibits.

13. After closure of the evidence of the prosecution, the statement of the appellant-convict was recorded under Section 313 Cr.P.C. regarding the circumstances appearing in evidence against him. The appellant-convict denied all the questions relating to circumstances appearing in evidence against him and stated that he is innocent.

14. Out of the 3 defence witnesses examined in this case, the D.W.1- Aditya Kumar has stated that on 30.12.2016 the occurrence took place. He reached the place of occurrence half an hour after the occurrence. Geeta Kumari informed the D.W.1 that the appellant-convict has been caught by the Anti-Corruption Bureau. P.W.6 was also present there. P.W.6 got the appellant-convict caught by the Anti-Corruption Bureau. The P.W.6 was the President and the DW 1 was the Secretary relating to the work of the construction of the culvert near the Mango tree in village Delho. He has proved the agreement relating to the said work which was marked exhibit A. The payment of the outstanding dues was not made because the work of the program was not completed by 29.10.2016. The P.W.6 never told the D.W.1 that demand of bribe is made regarding the payment of the outstanding amount relating to the said work. The D.W.1 heard the P.W.6 telling the appellant-convict to make the outstanding payment but the appellant-convict used to refuse the payment of outstanding dues on the ground that the work has not been completed. The P.W.6 was of the view that payment was to be made even if the work has not been completed. The outstanding dues were paid to them in the month of July-August 2019.

In his cross-examination the D.W.1 has stated that he has never heard the conversation between the P.W.6 and the appellant-convict. He does not remember the program number of the work done by P.W.6.

15. D.W.2 Chhotu Kumar Yadav has stated that he came to know about the occurrence from the D.W.1. 1-2 weeks after the occurrence, the D.W.2 met the P.W.6. The P.W.6 told the D.W.2 that he has got the appellant- convict caught by the Anti-Corruption Bureau as the appellant-convict was not doing his work quickly. The D.W.2 further stated that the 11 Cr.Appeal (SJ). No.302 of 2020 appellant-convict is a good man.

In his cross examination the D.W.2 has stated that he does not know the program number of the work in which the appellant-convict was entangled.

16. D.W.3 is the appellant-convict himself. He has deposed that the occurrence is of 30.12.2016. On that day he was going to Simaria. On the way the P.W.6 stopped the appellant-convict. Two other persons were with P.W.6. Out of whom one person disclosed himself to be a person of Anti-Corruption Bureau and enquired from the appellant-convict as to where the file relating to the work of construction of culvert near the mango tree done by the P.W.6 was. The appellant-convict answered that the file was in the Jangi panchayat building. Thereafter a vehicle came. The appellant-convict was made seated in the vehicle. The file was taken from panchayat building. They took the appellant-convict to the Hazaribagh Anti-Corruption Bureau Police Station. The signatures of the appellant-convict were obtained on blank papers after terrorising him. He has proved his signature on different papers which were marked exhibits. According to Exhibit 47 the reinforced cement casting of the culvert was done on 10.11.2016. The work of the program was not complete but the measurement book was prepared before the completion of the work which was an irregularity. No seizure was made from him.

In his cross-examination the D.W.3 has stated that he was arrested on 30.12.2016 from Koudi More situated on Simaria- Chatra main road. The program number was 01/16-17. The total project cost was ₹ 1,12,000/. The P.W.6 was one of the contactors of the said program. Before his arrest the work of the culvert was complete. The payment of the P.W.6 was made under the joint signature of the appellant-convict and the Mukhiya Saro Devi by way of cheque. The cheque was used to be kept by the appellant-convict. The pant worn by him at the time of the occurrence was seized at the Anti-Corruption Bureau Police Station.

17. Learned court below after taking into consideration the evidence in the record held that the evidence in record is sufficient to establish the charges against the appellant-convict beyond reasonable doubt and 12 Cr.Appeal (SJ). No.302 of 2020 convicted and sentenced him as already indicated above.

18. Mr. Mahesh Tewari, learned counsel for the appellant-convict submitted that the learned court below failed to appreciate the evidence in the record in its proper perspective and also failed to appreciate several anomalies in the evidence of the prosecution. It is then submitted by Mr. Tewari that the learned court below failed to consider that the absence of the signature of the approving authority on the list of the trap team which has been marked as exhibit 14 creates a reasonable doubt as the P.W.3-who was the verifying officer of the complaint of the P.W.6 and the P.W.8-the Investigating Officer of the case have stated the name of 2 different persons to be the Superintendent of Police of Anti-Corruption Bureau at the relevant time. It is then submitted that the learned court below also failed to appreciate the contradiction in the statement of the P.W.4 regarding the persons who caught hold of the appellant. It is then submitted that the learned trial court ought to have held that there is absolutely no evidence in the record regarding the handing over of the alleged general currency notes to the appellant-convict as bribe. Mr. Tewari further submits that to bring home the charge for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988, the essential ingredients are the demand, acceptance or attempt thereof of any gratification other than legal remuneration as a motive or reward for doing or forbearing to do any official act. In support of his contention, Mr. Tewari relied upon the judgment of Hon'ble Supreme Court of India in the case of Krishan Chander v. State of Delhi (2016) 3 SCC 108, wherein the Hon'ble Supreme Court of India reiterated the settled principle of law regarding the ingredients of inter alia section 7 of the Prevention of Corruption Act, 1988 para-35, 36 and 37 of which read as under:-

"35. 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 Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. 13 Cr.Appeal (SJ). No.302 of 2020 Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant.

36. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI." (emphasis supplied)

37. In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under:

"21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-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."

19. Mr. Tewari to buttress his submissions further relied upon the judgment of Hon'ble Supreme Court of India in the case of B. Jayaraj Vs. State of Andhra Pradesh (2014) 13 SCC 55 paragraphs - 8 and 9 of which read as under:-

"8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is 14 Cr.Appeal (SJ). No.302 of 2020 admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) 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.

9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 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. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent." (Emphasis Supplied)

20. Mr. Tewari next relied upon the judgment of Hon'ble Supreme Court of India in the case of P. Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and Another reported in (2015) 10 SCC 152 paragraph 23 and 24 of which reads as under:

"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 Section 7 or 13 of the Act would not entail his conviction thereunder.

24. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW 1 S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs 500 from the pocket of his shirt and handed over the same to the appellant. Though, a very spirited endeavour has been made by the 15 Cr.Appeal (SJ). No.302 of 2020 learned counsel for the State to co-relate this statement of PW 1 S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap 12 operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW 1 S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act has been proved. True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3-10-1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 4-10-1996. However, the testimony of PW 1 S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act against the appellant has been proved beyond reasonable doubt."

21. Mr. Tewari on the point of the indispensability of the proof of demand and illegal gratification for establishing the charges under section 7 and 13 of the Prevention of Corruption Act, 1988 relied upon the judgment of Hon'ble Supreme Court of India in the case of Mukhtiar Singh v. State of Punjab, (2017) 8 SCC 136, at page 141 paragraph 13 of which reads as under :

"13. 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 v. State of Kerala, 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 13 enunciation further, it was exposited in State of Kerala v. C.P. Raothat 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."

Cr.Appeal (SJ). No.302 of 2020

22. Mr. Tewari next relied upon the judgment of Hon'ble Supreme Court of India in the case of M.R. Purushotham v. State of Karnataka, (2015) 3 SCC 247 paragraph 6 and 7 of which read as under:

"6. PW 1 Ramesh, the complainant did not support the prosecution case. He disowned making the complaint in Ext. P-1 and stated in his examination-in-chief that the accused had not demanded anything from him and he did not know what is written in Ext. P-1 and the police have not recorded his statement in respect to this case. He was, therefore, declared hostile. However, PW 3 Kumaraswamy, panch witness has testified that after being summoned by PW 4 Inspector Santosh Kumar on 18-2-2000, the contents of Ext. P-1 were explained to him in the presence of the complainant and he accompanied the complainant to the house of the accused, wherein, the complainant gave the sum of Rs 500 to the accused as illegal gratification. It is on the aforesaid basis that the liability of the appellant-convictfor commission of the offences alleged was held to be proved, notwithstanding the fact that in his evidence the complainant PW 1 Ramesh had not supported the prosecution case.

7. In such type of cases the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. As already seen the complainant PW 1 Ramesh did not support the prosecution case insofar as demand by the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant. In this context the recent decision of a three-Judge Bench of this Court in B. Jayaraj v. State of A.P. [(2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] is relevant and it is held as follows: (SCC p. 58, para 8) "8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the 17 Cr.Appeal (SJ). No.302 of 2020 tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) 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." (Emphasis supplied) And submits that like the case of M.R. Purushotham v. State of Karnataka, (supra) in this case also there is no evidence in the record regarding the demand of bribe by the appellant-convict.

23. Mr. Tewari next relied upon the judgment of Hon'ble Supreme Court of India in the case of State of Haryana v. Ram Singh, (2002) 2 SCC 426 para-19 of which reads as under:-

19. Xxxxxxxx Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one -- the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Xxxxxxxxx and submitted that the learned trial court failed to consider the evidence put forth by the defence witnesses in its proper perspective by giving them the due weightage at par with the evidence put forth by the prosecution witnesses.

24. Mr. Tewari also relied upon the judgment of this court in the case of Md. Mahmood Ansari @ Md. Mahmud Ansari Versus The State of Jharkhand through C.B.I., Dhanbad in Cr. Appeal (SJ) No. 23 of 2014 dated 03.12.2020 wherein this court in the facts and circumstances of that case which has been mentioned in paragraph 23 of the judgment acquitted the appellant-convict of that case the reasons of which have been mentioned in para-24 of the judgment. Paragraphs 23 and 24 of the said judgment read as under:

"23. Having heard the submissions made at the Bar and after carefully 18 Cr.Appeal (SJ). No.302 of 2020 going through the records this court finds that out of the witnesses examined by the prosecution only PW 3 has stated about being an eyewitness to the giving and taking over the money from close quarters so that he could have the opportunity of hearing the conversation between the complainant and the appellant-convict as the other eyewitness as per the prosecution case were at a distance and the complainant has not been examined as a witness in this case. As already indicated the other independent witness of this case being the PW5 has categorically stated that he has not seen giving and taking of the money between the complainant and the appellant-convict. The PW 3 has not stated about the appellant-convict demanding the money from the complainant. The PW 3 has not stated as to who gave money and to whom the money was given. Further he did not state from whom money was demanded and for what purpose money was to be brought.

24. Thus after going through the evidence in the record this court is of the considered view that, the evidence in the record falls short of establishing the demand of bribe money by the appellant-convict from the complainant beyond reasonable doubt. As already discussed above it is a settled principle of law that demand of bribe money is sine qua non to convict the accused for the offences punishable under sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. In the absence of evidence regarding the essential ingredient of bringing the charge for the offences punishable under sections 7 and 13(1)(d) of the Prevention of Corruption Act , 1988, this court is of the considered view that this is a fit case where the appellant-convict be acquitted by giving him the benefit of doubt.

25. Mr. Tewari next relied upon the judgment of this court in the case of Priyanka Kumari @ Priyanka Kumari Pandey v. State of Jharkhand (Cr. Appeal (SJ) No. 887 of 2019, Date of Judgment 10.08.2020 wherein in para-22 this court has observed as under:

22. Having heard the submissions made at the Bar and after going through the evidence in the record, it is crystal clear that there is absolutely no evidence in the record regarding the demand or acceptance of money by the appellant-convict on the alleged date of occurrence on 29.03.2011 for the occurrence of which date the appellant-convict faced the trial. There is no shadow witness who accompanied the P.W.6- the complainant at the time of alleged handing over of the bribe amount.

Though the P.W.10 made an effort by projecting the P.W.9 as the shadow witness but the said solitary testimony of the P.W.10 will not cut any ice as the P.W.9 himself has not claimed to be a shadow witness 19 Cr.Appeal (SJ). No.302 of 2020 rather the P.W.9 as well as all the other witnesses of the prosecution who were the members of the trap team have categorically stated that the P.W.1 was the first person to reach the appellant-convictafter P.W.6 and the P.W.6 alone went to deliver the bribe amount to the appellant- accused. So far as the judgment of Rajendra Prasad Yadav @ Rajendra Vs. State of Bihar(supra) relied upon by the learned counsel for the Anti-Corruption Bureau is concerned, the facts of that case is in entirely different from the facts of this case. Unlike that case this being a trap case, the FIR was not registered on the basis of the application of the P.W.6- complainant rather the same was registered basing upon the verification report submitted by the P.W.9. Hence the ratio of Rajendra Prasad Yadav @ Rajendra Vs. State of Bihar(supra) is not applicable to this case.

26. Mr. Tewari lastly relied upon the judgment of this court in the case of Bhim Singh @ Bhimsen Singh versus State of Jharkhand through ACB (Cr. Appeal No. 319 of 2020) para-18 of which reads as under:

18. Having heard the submissions made at the Bar and after going through the evidence in record, it is crystal clear that there is absolutely no evidence in the record regarding the demand and acceptance of the bribe money by the appellant-convict on the alleged date of occurrence on 21.10.2016 for the offence of which date the appellant-convict was facing the charges. P.Ws.1 and 2 who are the independent witnesses and are responsible Government Servants and were specially deputed by Deputy Commissioner, Dhanbad for being the members of the trap team have not supported the case of the prosecution, so far as the demand and acceptance of bribe amount is concerned. Though the P.W.6 has stated about the demand being made by the appellant-convict during course of his verification and P.W.4 has stated that P.W.5 accompanied him at the time of verification and the appellant-convict demanded expenses but the P.W.6 has categorically stated that the said verification occurrence took place on 20.10.2016 and the same has also been mentioned in the verification report of P.W.6 basing upon which this case has been registered. It is crystal clear that the charges for which the appellant-convict faced the trial were for the occurrence of 21.10.2016 and not for any occurrence which took place on 20.10.2016. So these testimonies of the P.W.6 and P.W.4 regarding the occurrence of 20.10.2016 will be of no avail to the prosecution so far as establishing the charges for the offences which took place on 21.10.2016. The Hon'ble 20 Cr.Appeal (SJ). No.302 of 2020 Supreme Court of India in the case of M.R. Purushotham vs. State of Karnataka reported in 2014 AIR SCW 5740 in the facts of that case as the complainant did not support the case of demand of bribe and was declared hostile, observed as under:

"When PW1 Ramesh himself had disowned what he has stated in his initial complaint in Exh.P1 before PW4 Inspector Santosh Kumar and there is no other evidence to prove that the accused had made any demand, the evidence of PW3 Kumaraswamy and the contents of Exh.P1 complaint cannot be relied upon to conclude that the said material furnishes proof of demand allegedly made by the accused." In this case, P.W.4 was the main witness as per the case of the prosecution who could have stated about the demand and acceptance of bribe on 21.10.2016 by the appellant-convict but he has categorically stated that no demand was ever made by the appellant-convict nor he has stated anything about any amount given to the appellant-accused. There is nothing in record to disbelieve the testimony of P.W.4 in this respect that he did not gave any money to the appellant-accused. No other witness has deposed about demand of money on 21.10.2016 as none of the other witnesses have claimed to be the eye-witness of P.W.4 handling over the alleged amount to the appellant-accused. Even the P.W. 1 and 2 who are the two responsible government servants who were deputed by the Deputy Commissioner and to were supposed to have seen the demand and acceptance have not stated about demand or acceptance of the bribe amount by the appellant-accused, without any plausible explanation. In the absence of such evidence regarding the essential ingredient made by the appellant- accused on 21.10.2016, this Court has no hesitation in holding that the evidence in record is insufficient to establish the charge for the offence punishable under Section 7 or under Section 13 (2) of the Prevention of Corruption Act, 1988 and this Court is of the considered view that this is a fit case where the appellant-convict namely Bhim Singh @ Bhimsen Singh be acquitted by giving him the benefit of doubt.

27. Mr. Tewari- the learned counsel for the appellant-convict finally submitted that as in this case there is absolutely no evidence regarding the demand of illegal gratification and the evidence put forth by the prosecution is full of discrepancies and as the prosecution has miserably failed to establish either the charge for the offence punishable under section 7 or the charge for the offence punishable under section 13(1)(d) of the Prevention of Corruption Act, 1988 hence 21 Cr.Appeal (SJ). No.302 of 2020 impugned judgment of conviction dated 20.02.2020 and order of sentence dated 29.02.2020 passed by learned Special Judge Vigilance (A.C.B), Hazaribag in Special Vigilance Case No.15 of 2017 be set aside and the appellant-convict be acquitted of the charges by at least giving him the benefit of doubt.

28. Ms. Nikki Sinha, the learned counsel for the Anti-Corruption Bureau on the other hand defended the impugned judgment and submitted that the contradictions pointed out by the learned counsel for the appellant in the testimonies of the witnesses are minor discrepancies which do not go to the root of the case and are common in the testimony of the witnesses particularly when they are examined after a long gap of the occurrence. It is then submitted by Ms. Sinha that there is absolutely no challenge to the testimonies of prosecution witnesses on the material aspects of their testimonies that is the demand, acceptance and recovery of the tainted money or for that matter the recovery of the file relating to the work done by the P.W.6 from the Dickey of the motorcycle of the appellant-convict at the place of occurrence itself. Ms. Sinha next submitted that the presumption envisaged under Section 20 of Prevention of Corruption Act is attracted in this case, in view of the evidence in record. It is then submitted by Ms. Sinha that as the learned trial court has assigned specific and sufficient reasons for not accepting the testimonies of witnesses examined by the defence as such defence of the appellant-convict that the measurement book was prepared even though the work was not done; which was never raised by the appellant-convict himself either in the cross-examination of the prosecution witnesses or his examination under Section 313 Cr.P.C. and this defence built up at the fag end of the trial; is only an afterthought, cooked up for the purpose of this case to escape from the consequence of commission of the offence, by the appellant-convict. It is next submitted by Ms. Sinha that the prosecution has put forth cogent evidence through the eight witnesses examined by it as well as the documents which have been marked 22 Cr.Appeal (SJ). No.302 of 2020 exhibit including the 2 cheques which are prepared by the appellant- convict to be given to the complainant after receiving the bribe amount of ₹ 5000/- and thus has established the essential ingredients of the offences punishable under Section 7 and under Section 13(2) read with section 13 (1) (d) of Prevention of Corruption Act, 1988 being;

(i) demand of bribe,

(ii) acceptance of bribe; and

(iii) recovery of bribe amount.

Hence the evidence in the record is sufficient to establish the charges of both the offences punishable under section 7 as well as 13 (2) of the Prevention of Corruption Act, 1988.

29. Ms. Sinha drawing attention of the court to section 20 of the Prevention of Corruption Act 1988 which reads as under:

"20. Presumption where public servant or accepts gratification other than legal remuneration.--(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) or sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."

The statutory presumption under Section 20 of the Act can be confuted 23 Cr.Appeal (SJ). No.302 of 2020 by bringing on record some evidence, either direct or circumstantial, that the money was accepted other than for the motive or the reward under Section 7 of the Act. The standard required for rebutting the presumption is tested on the anvil of preponderance of probabilities which is a threshold of a lower degree than proof beyond all reasonable doubt.

Submits that the evidence in the record put forth by prosecution is sufficient to draw the presumption under section 20 of the Prevention of Corruption Act 1988 to the effect that the appellant-convict accepted ₹ 5000/- from the P.W.6 as the motive or reward in terms of section 7 of the prevention of corruption act 1988. In this respect Ms. Sinha relied upon the judgment of Hon'ble Supreme Court of India in the case of Vinod Kumar Garg v. State (NCT of Delhi), (2020) 2 SCC 88 paragraph 17 of which reads as under:

"17. In the case at hand, the condition precedent to drawing such a legal presumption that the accused has demanded and was paid the bribe money has been proved and established by the incriminating material on record. Thus, the presumption under Section 20 of the Act becomes applicable for the offence committed by the appellant under Section 7 of the Act. The appellant was found in possession of the bribe money and no reasonable explanation is forthcoming that may rebut the presumption. Further, the recovery of the money from the pocket of the appellant has also been proved without doubt. We, therefore, hold that money was demanded and accepted not as a legal remuneration but as a motive or reward to provide electricity connection to Nand Lal (PW 2) for the shed. "

Ms. Sinha next relied upon the judgment of Hon'ble Supreme Court of India in the case of M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 paragraph 14 and 22 of which reads as under:

14. When the sub-section deals with legal presumption it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only 24 Cr.Appeal (SJ). No.302 of 2020 requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.

22. In Raghubir Singh v. State of Haryana [(1974) 4 SCC 560 : 1974 SCC (Cri) 596] V.R. Krishna Iyer, J. speaking for a three-Judge Bench, observed that the very fact of an Assistant Station Master being in possession of the marked currency notes against an allegation that he demanded and received that amount is "res ipsa loquitur". In this context the decision of a two-Judge Bench of this Court (R.S. Sarkaria and O. Chinnappa Reddy, JJ.) in Hazari Lal v. State (Delhi Admn.) [(1980) 2 SCC 390 : 1980 SCC (Cri) 458] can usefully be referred to. A police constable was convicted under Section 5(2) of the Prevention of Corruption Act, 1947, on the allegation that he demanded and received Rs 60 from one Sriram who was examined as PW 3 in that case. In the trial court PW 3 resiled from his previous statement and was declared hostile by the prosecution. The official witnesses including PW 8 have spoken to the prosecution version. The Court found that phenolphthalein-smeared currency notes were recovered from the pocket of the police constable. A contention was raised in the said case that in the absence of direct evidence to show that the police constable demanded or accepted bribery no presumption under Section 4 of the Act of 1947 could be drawn merely on the strength of recovery of the marked currency notes from the said police constable. Dealing with the said contention Chinnappa Reddy, J. (who spoke for the two-Judge Bench observed as follows: (SCC p. 396, para 10) "It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW 3.

Under Section 114 of the Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to Section 114 of the Evidence Act is that the court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the facts and circumstances of the present case the court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW 3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the 25 Cr.Appeal (SJ). No.302 of 2020 money from PW 3, the presumption under Section 4(1) of the Prevention of Corruption Act is immediately attracted. The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the courts below."

30. It is further submitted by Ms. Sinha that the testimonies of none of the witnesses of the prosecution except the P.W.6 has been impeached in any manner in their respective cross-examination or otherwise therefore the testimonies of all these prosecution witnesses are of unimpeachable character and their testimonies are trustworthy and reliable and they have stated about all the ingredients of the offences punishable under section 7 as well as 13 of the Prevention of Corruption Act 1988. Hence, it is submitted that the learned trial court having rightly convicted the appellant-convict and the sentence of the appellant-convict being commensurate with the grave offences committed the sentence imposed by the learned trial court is just and proper hence the same does not warrant interference and this appeal being without any merit be dismissed.

31. Having heard the rival submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that there is no dispute that it is a settled principle of law that mere recovery of the bribe money by itself cannot bring home the charge for the offences punishable under section 7 or 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money, as has inter alia been held in the cases of Krishan Chander v. State of Delhi (supra), P.Satyanarayana Murthy Versus State ofA.P.(Supra), B. Jayaraj Versus State of A.P.(Supra), Mukhtiar Singh v. State of Punjab (supra) relied upon by the learned counsel for the appellant-convict and as already discussed above in this judgment while referring to the submissions made by the learned counsel for the appellant-convict. There is also no quarrel that it is also a settled principle of law that suspicion, however grave it may be, 26 Cr.Appeal (SJ). No.302 of 2020 cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved" as has inter alia been held in the cases of P.Satyanarayana Murthy Versus State of A.P. (Supra) also relied upon by the learned counsel for the appellant-convict.

32. It is a settled principle of law that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. The Hon'ble Supreme Court in of India the case of Laxmibai (Dead) Through LR's. & Anr. vs. Bhagwantbuva (Dead) Through LR's & Ors. reported in (2013) 4 SCC 97 in paragraph no.40 in this respect has held as under:-

"40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicates that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses."(Emphasis Supplied) So far as the contention of the appellant-convict that even the complainant 27 Cr.Appeal (SJ). No.302 of 2020 being the PW 6 having not supported the case of demand and acceptance of the bribe money by the appellant-convict is concerned, it is pertinent to mention here that PW6 is an unreliable witness. During his examination in chief he did not support the case of the prosecution but in his cross- examination he did not agree with the submissions of the prosecution that the appellant-convict never demanded bribe. Under such circumstances this is a case where the court has to examine as to whether the evidence in the record sans the testimony of P.W.6 is sufficient to bring home the charges against the appellant-convict by establishing the 3 essential ingredients being demand of bribe by the appellant-convict, acceptance of the bribe amount voluntarily by the appellant-convict and recovery of the bribe amount from him. As already mentioned above the P.W.1, P.W 2 and the P.W.8 of course all of whom are police officers, have categorically stated about all the said three ingredients for establishing the charges for the offence punishable under section 7 as well as 13(2) read with section 13 (1) (d) of the Prevention of Corruption Act 1988. Their testimonies are trustworthy and reliable. There is absolutely no cross-examination of the P.W.1 and P.W.2 in respect of their testimony made in their respective examination in chief regarding the demand of the bribe money by the appellant-convict, acceptance of the bribe money by the appellant-convict voluntarily and recovery of the bribe money from the appellant-convict. There is also no cross-examination of the P.W.1 regarding the statement made in his examination in chief to the effect that the file relating to the work of the construction of convert by the complainant-P.W. 6 from the Dickey of the motorcycle of the appellant-convict. Hence their testimony in this respect has remained unchallenged so the same has to be accepted as true. Besides there is documentary evidence in the record being the cheques which were prepared by the appellant-convict to be paid to the P.W. 6 as also the post trap memorandum which also supports the case of the prosecution. The P.W.3 is the officer who verified the complaint. He stated categorically about the occurrence of 28.12.2016 when during the course of verification of the complaint; he heard the appellant-convict demanding the bribe amount of ₹ 6000/- from the P.W.6 and on the 28 Cr.Appeal (SJ). No.302 of 2020 request of the P.W.6 scaling down the demand of bribe to ₹ 5000/-and upon the PW6 agreeing to pay the bribe amount of ₹ 5000/-, the appellant accused filled up the cheques to be given to the P.W.6 in respect of the work done by him. There is absolutely no cross-examination of P.W.3 regarding this portion of his testimony made in his examination in chief about the said demand of bribe by the appellant-convict from the P.W.6 on 28.12.2016. So this portion of the testimony of the P.W.3 has also be accepted as true; in the absence of any cross examination. The shadow witness being the P.W.4 has also stated about giving of money by the P.W.6 to the appellant-convict after a conversation between them. The P.W.5 has also stated about the recovery of the bribe money from the appellant-convict and about the post trap formalities. Nothing has been elicited in the cross-examination of these witnesses to disbelieve or discredit their testimonies.

So far as the contention of the appellant regarding the testimonies of the officers of Anti-Corruption Bureau and their conduct is concerned, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of Hazari Lal vs. State (Delhi Admn.) reported in AIR 1980 SC 873 that the evidence of such officers should not be treated on the same footing as evidence of accomplices and there should not be insistence on corroboration. In the facts and circumstances of a particular case a court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the court may unhesitatingly accept the evidence of such an officer, paragraph no.8 of the said Judgment reads as under :-

"8. After excluding irrelevant material we are left with the evidence of PW 8 and that of PW 4 whose evidence corroborates that of PW 8 in several material particulars. We, however, wish to say that the evidence of PW 8 is entirely trustworthy and there is no need to seek any corroboration. We are not prepared to accept the submission of Shri Frank Anthony that the fact that he is the very police officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of prudence which has crystallised into a rule of law, nor indeed any rule of prudence, which requires that the 29 Cr.Appeal (SJ). No.302 of 2020 evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance. We are forced to say this because of late we have come across several judgments of Courts of Session and sometimes even of High Courts where reference is made to decisions of this Court on matters of appreciation of evidence and decisions of pure question of fact. While on this subject of appreciation of evidence we may also refer to an argument of Shri Frank Anthony based on the observations of a learned Single Judge in Kharaiti Lal v. State [(1965) 1 DLT 362], that persons holding clerical posts and the like should not be called as panch witnesses, as such witnesses could not really be called independent witnesses as they would always be under fear of disciplinary action if they did not support the prosecution case. We do not think we can accept the submission of Shri Frank Anthony. The respectability and the veracity of a witness is not necessarily dependant upon his status in life and we are not prepared to say that clerks are less truthful and more amenable than their superior officers."(Emphasis supplied) It is also a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of Gian Singh v. State of Punjab reported in AIR 1974 SC 1024 that police officer cannot be discredited in trap cases merely because they are police officials nor can other witnesses be rejected because on some other occasion they have been witnesses for the prosecution in the past. Basically, the Court has to view the evidence in the light of the probabilities and the intrinsic credibility of those who testify, paragraph no.5 of the said Judgment reads as under:-

"5. Xxxxxxxxxxxx In a recent case to which one of us was party (Som Prakash v. State of Delhi [(1974) 4 SCC 84 : 1974 SCC (Cri) 215] ) this Court has held that police officials cannot be discredited in a trap case merely because they are police officials, nor can other witnesses be rejected because on some other occasion they have been witnesses for the prosecution in the past. Xxxxxxxxxxxxx."

Cr.Appeal (SJ). No.302 of 2020 It is pertinent to mention here that it is not a sine qua non that the complainant must support the case of the prosecution in order to bring home the charges for the offences punishable under the penal provisions of the Prevention of Corruption Act 1988, as in the case of Hazari Lal v. State (Delhi Admn.) (Supra) even though the complainant resiled from his statement made before the police but still the Supreme Court of India taking into consideration the evidence in the record upheld the conviction of the accused person in that case. True it is that the shadow witness being the P.W.4 has only stated that there was conversation between the P.W.6 and the appellant-convict after which the P.W.6 gave the money to the appellant-convict and he has not specifically stated about hearing the demand of bribe by the appellant-convict. It is pertinent to mention here that there cannot be any hard and fast rule that in all cases the shadow witness has to hear the demand of the bribe amount by the accused person of the case. There may be cases where it is not possible for shadow witness to hear the exact words of the demand of the bribe money in a case like the present one where the trap witnesses took their positions not knowing exactly at which place the appellant- convict coming on the motorcycle will stop. In fact in the case of State of U.P. v. Zakaullah, (1998) 1 SCC 557 where one of the reasons which the learned Single Judge advanced for interfering with the conviction and sentence was that nobody overheard the demand made by the delinquent officer for bribe the Hon'ble Supreme Court observed as under in paragraph-14:

14. The two remaining reasons, i.e., nobody overheard the demand made by the respondent for bribe and that the amount was found not in the right pocket but only in the left pocket, are flippant grounds which should never have merited consideration. xxxxxxxx (Emphasis supplied)

33. So far as the contention of the appellant-convict that the evidence in the record is insufficient to arrive at a conclusion that the appellant- convict demanded the bribe from the P.W.6 is concerned, it would be proper at this stage to refer to the settled principle of law in this respect. The Hon'ble Supreme Court of India in the case of B. Noha v. State of 31 Cr.Appeal (SJ). No.302 of 2020 Kerala & Another, (2006) 12 SCC 277 in the facts of that case where PW 1 of that case deposed that he told the accused that he had brought the money directed by the accused, at which the accused asked the PW 1 to take a cut and give the same to him, the Hon'ble Supreme Court observed that as it was proved that there was voluntary and conscious acceptance of money so there is no requirement of any further burden being cast upon the prosecution to prove by direct evidence, the demand or motive by relying upon its judgment in the case of State of A.P. v. Kommaraju Gopala Krishna Murthy (2000) 9 SCC 752 wherein it was held that when an amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. Paragraphs 10 and 11 of the judgment in the case of B. Noha v. State of Kerala, (supra) reads as under:

"10. The evidence shows that when PW 1 told the accused that he had brought the money as directed by the accused, the accused asked PW 1 to take a cut and give the same to him. When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. It was held by this Court in Madhukar Bhaskarrao Joshi v. State of Maharashtra as follows: (SCC p. 577, para 12) "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."

11. This decision was followed by this Court in M. Narsinga Rao v. State of A.P. There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW 1. It was held in the decision in State of A.P. v. Kommaraju Gopala Krishna Murthy that when an amount is found to have been passed to the public servant the burden is on public servant to establish that it 32 Cr.Appeal (SJ). No.302 of 2020 was not by way of illegal gratification. That burden was not discharged by the accused. (Emphasis supplied)

34. To the same effect is the judgment of Hon'ble Supreme Court of India in the case of Tarsem Lal v. State of Haryana (AIR 1987 SC 806) wherein in the facts of that case where the Sub-Divisional Officer, and another person went to Tehsil premises in a Jeep and waited near the tea stall for a signal and on receiving the signal they reached there and on personal search currency notes of Rs. 150/- were recovered from the person of the appellant and on these facts the appellant was prosecuted and was convicted and sentenced and the facts were not disputed, the Hon'ble Supreme Court of India observed as under in paragraph 6:

6 . Xxxxx In fact where the receipt of the amount and its recovery is not disputed it is not necessary for us to go through the evidence and examine it afresh, although learned Counsel went through the evidence in detail.

The only question is as to whether the Courts below were right in rejecting the explanation of the appellant for receipt of Rs. 150/-. The explanation given by the appellant which was seriously pressed by the learned Counsel for the appellant was that he had received this amount to be deposited in the small savings scheme on behalf of Gian Singh but it is significant that neither he had made any note of this fact nor given any receipt to Gian Singh. Apart from it is significant that the Sub-Divisional Officer who was a revenue officer and the appellant being a Patwari was his subordinate. The normal conduct of the appellant would have been to tell him as soon as he arrived for search that in fact he had received this amount to be deposited in the small savings scheme. It is impossible to believe that if the appellant had received this amount for being deposited in the small savings scheme he would have not opened his mouth and permitted the search and recovery of this amount from his pocket to be done by the Sub-Divisional Officer and allowed the matter to be handed over to the Police and still would not have come out to say what he chose to say at the trial. This conduct of the appellant in not coming out with this explanation instantaneously goes a long way to make this explanation just an afterthought specially when Sub-Divisional Officer conducted the search and recovered this amount from his person. In this view of the matter therefore in our opinion both the Courts below were right in discarding this explanation of the appellant. We therefore see no substance in this contention advanced on behalf of the appellant. (Emphasis supplied)

35. This principle of law was also reiterated by the Hon'ble Supreme 33 Cr.Appeal (SJ). No.302 of 2020 Court of India in its judgment in the case of State of Gujarat v. Navinbhai Chandrakant Joshi & Others, (2018) 9 SCC 242 by observing as under in paragraph 11 :

"11. Xxxxx Since it is established that the accused was possessing the bribe money, it was for them to explain that how the bribe money has been received by them and if he fails to offer any satisfactory explanation, it will be presumed that he has accepted the bribe."

This court is conscious of the fact that the said judgment in the case of State of Gujarat v. Navinbhai Chandrakant Joshi, (2018) 9 SCC 242 was later on modified by the Hon'ble Supreme Court of India in the case of State of Gujarat v. Navinbhai Chandrakant Joshi, (2019) 13 SCC 361 by observing as under:

"1. This is a petition filed by Respondent 1-Accused 2 to modify the judgment dated 17-7-2018 in State of Gujarat v. Navinbhai Chandrakant Joshi. In para 3 of the judgment, Respondent 1-Accused 2 has been stated to be the government servant, which is not factually correct. Though, Respondent 1-Accused 2 is not a government servant, bribe amount in currency notes of Rs 500 were recovered from him only; there were signs of anthracene powder noticed from the shirt pocket of Respondent 1-Accused

2. Considering the fact that currency notes were recovered form Respondent 1-Accused 2, in our view, the ingredients of Section 8 of the Prevention of Corruption Act, 1988 are established. The conviction of Respondent 1-Accused 2 under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 is modified as the conviction under Section 8 of the said Act, and the sentence of one year imposed is reduced to six months

2. The judgment shall be modified accordingly."

But reiteration of the said principle has remained intact even after the said modification.

It is pertinent to mention here that the appellant-convict has not given any explanation for possessing the money recovered from him. The overwhelming evidence in the record of recovery of the currency notes smeared with phenolphthalein powder leaves no room for doubt that the bribe money was recovered from the possession of the appellant-convict.

36. So far as the contention of the appellant regarding the discrepancy in the testimonies of the witnesses examined in this case on some material aspects is concerned, as already indicated above the 3 police officers being 34 Cr.Appeal (SJ). No.302 of 2020 the P.W.1, P.W.2 and P.W.8 have categorically stated about the appellant- convict demanding the bribe amount, accepting the same voluntarily as well as the bribe amount was recovered from the appellant-convict. It is pertinent to mention here that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant and in the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience, as has been observed by the Hon'ble Supreme Court of India in the case of State of U.P. vs. Dr. G. K. Ghosh reported in AIR 1984 SC 1453 para-11 of which reads as under:-

11. "It is now time to deal with the criticism urged as a matter of course in the context of the police officer leading the raiding party namely that he is an interested witness. This is true, but only to an extent a very limited extent. He is interested in the success of the trap to ensure that a citizen, who complains of harassment by a Government officer making a demand for illegal gratification is protected and the role of his department in the protection of such citizen is vindicated. Perhaps it can be contended that he is interested in the success of the trap so that his ego is satisfied or that he earns a feather in his cap. At the same it must be realised that it is not frequently that a police officer, himself being a Government servant, would resort to perjury and concoct evidence in order to rope in an innocent Government servant. In the event of the Government servant concerned refusing to accept the currency notes offered by the complainant, it would not be reasonable to expect the police officer to go to the length of concocting a false seizure memo for prosecuting and humiliating him merely in order to save the face of the complainant, thereby compromising his own conscience. The Court may therefore, depending on the circumstances of a case, feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the police officers even if the trap witnesses turn hostile or are found not to be independent. When therefore besides such evidence there is circumstantial evidence which is consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the prosecution case. xxxxxxx"

37. It is also a settled principle of law that when the witnesses are examined after a long time from the date of occurrence such witnesses cannot recollect and narrate the entire conversation with the photographic 35 Cr.Appeal (SJ). No.302 of 2020 memory notwithstanding hiatus of passage of time as has been held by the Hon'ble Supreme Court of India in the case of Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi) (supra) para- 14 of which reads as under:-

14. "The contradictions that have crept in the testimonies of Nand Lal (PW 2) and Hemant Kumar (PW 3) noticed above and on the question of the total amount demanded or whether Nand Lal (PW 2) had earlier paid Rs 500 are immaterial and inconsequential as it is indisputable that the bribe was demanded and taken by the appellant on 3-8-1994 at about 10.30 a.m. The variations as highlighted lose significance in view of the proven facts on the recovery of bribe money from the pant pocket of the appellant, on which depositions of Nand Lal (PW 2), Hemant Kumar (PW

3) and Rohtash Singh (PW 5) are identical and not at variance. The money recovered was the currency notes that were treated and noted in the pre-

raid proceedings vide Ext. PW 2/G. The aspect of demand and payment of the bribe has been examined and dealt with above. The contradictions as pointed out to us and noted are insignificant when juxtaposed with the vivid and eloquent narration of incriminating facts proved and established beyond doubt and debate. It would be sound to be cognitive of the time gap between the date of occurrence, 3-8-1994, and the dates when the testimony of Nand Lal (PW 2) was recorded, 9-7-1999 and 14-9-1999, and that Hemant Kumar's (PW 3) testimony was recorded on 18-12-2000 and 30-1-2001. Given the time gap of five to six years, minor contradictions on some details are bound to occur and are natural. The witnesses are not required to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time. Picayune variations do not in any way negate and contradict the main and core incriminatory evidence of the demand of bribe, reason why the bribe was demanded and the actual taking of the bribe that was paid, which are the ingredients of the offence under Sections 7 and 13 of the Act, that as noticed above and hereinafter, have been proved and established beyond reasonable doubt. Documents prepared contemporaneously noticed above affirm the primary and ocular evidence. We, therefore, find no good ground and reason to upset and set aside the findings recorded by the trial court that have been upheld by the High Court. Relevant in this context would be to refer to the judgment of this Court in State of U.P. v. G.K. Ghosh wherein it was held that in a case involving an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, it may be safe to accept the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and inconsistent with his innocence, there should be no difficulty in upholding the conviction. (Emphasis Supplied)

38. Having carefully going through the record as already discussed above, nothing has been elicited in the cross-examination of the prosecution witnesses to discard or disbelieve their testimonies. As 36 Cr.Appeal (SJ). No.302 of 2020 already mentioned above there is absolutely no cross-examination of the material prosecution witnesses so far as their testimonies regarding the demand of the bribe by the appellant-convict, the acceptance of bribe by the appellant-convict and the recovery of the tainted money from the appellant-convict. The defence tried to be built up by the appellant-convict through the defence witnesses is an afterthought only as no such defence was put forth in the cross-examination of the prosecution witnesses nor any such thing was even whispered by the appellant-convict in his examination under section 313 of the Cr.P.C. The testimonies of the prosecution witnesses are trustworthy and reliable. The contradiction including the discrepancy in the name of the Superintendent of Police who approved the list of trap team or for that matter who caught hold of which of the hand of the appellant- convict at the time of the trap are puerile and are of minor nature which do not go to the root of the case and which are common in examination of any ordinary witnesses particularly when he is examined after a long time of the occurrence. Thus they are not of such nature to discredit the testimonies of the prosecution witnesses. This Court is of the considered view that the testimony of the witnesses of the prosecution in this case as well as the documents proved by the prosecution has already indicated above; establishes the fact that the appellant-convict demanded bribe money from the PW6 and the PW6 gave the tainted currency notes smeared with chemicals of ₹ 5,000/- and after receiving the bribe amount, the appellant-convict counted the currency notes using both his hands and kept the same in the left side pocket of his pant which was recovered by the P.W.4 and on being asked, the appellant-convict disclosed that he has kept the bribe amount in the pocket of his pant and upon the fingers of the hands of the appellant- convict being washed in sodium carbonate solution, the colour of solution turned pink and the numbers of the notes tallied with the numbers of the notes mentioned in the G.C. notes memorandum and the bribe money of ₹ 5000/- consisting of 2 notes of ₹ 2000/- each and ten notes of ₹ 100/- each were recovered. The testimonies of the complainant- P.W.4 or for 37 Cr.Appeal (SJ). No.302 of 2020 that matter P.W.1, P.W.2, P.W.8 and P.W.3 have not been demolished in any manner even after lengthy cross examination of them. Nothing has been elicited in the cross-examination of any of the prosecution witnesses except the P.W.6 to discredit or shake their testimonies.

39. The facts of the judgments rendered by this court in the case of Md. Mahmood Ansari @ Md. Mahmud Ansari Versus The State of Jharkhand through C.B.I., Dhanbad (supra), Priyanka Kumari@ Priyanka Kumari Pandey v. State of Jharkhand (supra) and Bhim Singh @ Bhimsen Singh versus State of Jharkhand through ACB (supra) as mentioned in this judgment above itself, are entirely different from the facts of this case hence the ratio of those cases are not applicable in the facts of this case. Thus, in the considered view of this court, the evidence in the record put forth by the prosecution, is sufficient to establish the following ingredients for the offences punishable under Section 7 as well as 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 being

(i) Demand of Bribe.

(ii) Acceptance of Bribe.

(iii) Recovery of Bribe amount.

So far as the defence evidence is concerned, the D.W.2 is a hearsay witness hence his testimony is of no avail so far as this case is concerned. The D.W.1 has only stated about the P.W.6 having been falsely implicated the appellant-convict as the appellant-convict was not paying the amount for the work done though the same was not complete. But he supported the case of the prosecution to the extent that the appellant-convict was trapped by the Anti-Corruption Bureau. The same is contrary to the deposition of D.W.3 who has stated about being taken to his office for taking the files relating to the work done by the P.W.6. Further the D.W.3 being the appellant-convict himself has gone to the extent of admitting that the measurement book was prepared of course it was his contention that the measurement book was prepared without the work been complete. But such testimony of the D.W.3 do not inspire confidence rather it appears that the said defence has been cooked up only for the 38 Cr.Appeal (SJ). No.302 of 2020 purpose of the defence of the case as he has not taken the plea even in his statement recorded under section 313 of the Code of Criminal Procedure. More so because in his cross-examination the DW.3 has categorically stated that he was arrested from the place of occurrence on 30.12.2016 and before his arrest the work of the culvert was complete. This court is conscious of the settled principle of law that the evidence of the defence witnesses are to be treated at par with the prosecution witnesses and the defence version is to be weighed in the scale of preponderance of probability but still this court is of the considered view that the evidence put forth by the defence is of no help to dislodge the otherwise well proved case of the prosecution or to report the presumption which is to be drawn in this case in view of section 20 of the Prevention of Corruption Act 1988. Accordingly this court is of the considered view that the appellant-convict has rightly been convicted for the offences punishable under Section 7 as well as 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988.

40. Thus, this Court do not find any justifiable reason to interfere with the conviction of the appellant-convict for the offences punishable under Section 7 as well as 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act,1988 as made by the learned trial court in the impugned judgment and the same is confirmed.

41. So far as the sentence is concerned, it is pertinent to mention here that rampant corruption is seen in every walk of our life. People, particularly those holding high office, are frequently seen accepting illegal gratification. In such serious cases showing mercy to such corrupt official may send wrong signals. The Hon'ble Supreme Court of India, in the case of Narendra Champaklal Trivedi v. State of Gujarat, (2012) 7 SCC 80 has observed thus in paragraph -30 "30. Xxxxxxxxxxx It should be paramountly borne in mind that corruption at any level does not deserve either sympathy or leniency. In fact, reduction of the sentence would be adding a premium. The law does not so countenance and, rightly so, because corruption corrodes the spine of a nation and in the ultimate eventuality makes the economy sterile."

The appellant-convict has also not raised any grievance regarding the 39 Cr.Appeal (SJ). No.302 of 2020 quantum of sentence in the appeal memo nor was anything in this respect agitated on behalf of the appellant-convict at the time of hearing of the appeal. Thus in this backdrop, considering the huge amount of bribe taken by the appellant-convict, the sentence also appears to be proper. Because of the facts of the case as well as law discussed above, this Court is of the considered view that the conviction and sentence of the appellant-convict is proper.

42. Accordingly, the impugned judgment of conviction dated 20.02.2020 and order of sentence dated 29.02.2020 passed by learned Special Judge Vigilance (A.C.B), Hazaribag in Special Vigilance Case No.15 of 2017 is upheld and this appeal being without any merit is dismissed.

43. The appellant-convict - Hari Charan Rajak is in custody.

44. Let the lower court records along with a copy of this judgment be sent to the learned court below forthwith.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 22nd day of December, 2021 AFR/Smita-Animesh 40

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