Madhya Pradesh High Court
Harpal Singh Bundela vs The State Of Madhya Pradesh on 6 September, 2017
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Criminal Appeal No. 896 of 2017 &
1022 of 2017
Parties Name Harpal Singh Bundela
vs
State of Madhya Pradesh
&
Ganesh Rajput
vs
State of Madhya Pradesh
Bench Constituted Hon'ble Shri Justice S.K. Gangele
Judgment delivered by Hon'ble Shri Justice S.K. Gangele
Whether approved for Yes/No
reporting
Name of counsels for parties For appellant: Shri Anil Khare, learned
Senior Advocate assisted by Shri Jasneet
Singh Hora, Advocate in CRA-896-2017.
Shri Ram Sahodar Tiwari, Advocate in
CRA-1022-2017.
For respondent/State: Shri Pankaj
Dubey, Advocate.
Law laid down Significant paragraph numbers (J U D G M E N T) Pronounced on :06.09.2017
1. These two appeals (CRA-896-2017 and CRA-1022-2017) have been filed against common judgment dated 20.02.2017 passed in Special Case No.04/2013 by the First Additional Sessions Judge & Special Judge (Lokayukta), Jabalpur. Hence,
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CRA-896-2017 & CRA-1022-2017 both the appeals are heard together and are decided by this common judgment.
2. The trial Court held the appellant Harpal Singh Bundela guilty for commission offence punishable under Section 7 of Prevention of Corruption Act, 1988 (hereinafter referred as 'the Act of 1988) and awarded sentence of RI three years alongwith fine amount of Rs.10,000/-. He is also held guilty for commission of offence punishable under Section 13(1)(d) read with 13(2) of the Act of 1988 and awarded sentence of RI three years alongwith fine amount of Rs.10,000/-. The trial Court further ordered that the sentences shall run concurrently.
3. The trial Court also held the appellant Ganesh Rajput guilty for commission of offence punishable under Section 8 of the Act of 1988 and awarded sentence of RI three years alongwith fine amount of Rs.3000/-.
4. Complainant Vishal Kumar Vinodiya made a complaint before Lokayukta Police, Jabalpur that he had applied for a learning license of heavy motor vehicle. For the aforesaid license, appellant Mr. Bundela had made a demand of Rs.6000/-. After receiving a written complaint (Ex.P32), the police had handed over a DVR to the complainant for recording conversation of demand of money. He had submitted the recorded conversation with the Lokayukta Police. Then FIR was lodged and witnesses of
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CRA-896-2017 & CRA-1022-2017 panchnama were called and then transcript was prepared. The complainant handed over four notes of Rs. 500 each, and then phenolphthalein powder was smeared and the currency was handed over to the complainant.
5. Trap party proceeded at the spot. A DVR was handed over to the complainant. The complainant went inside the RTO office. He signaled and informed the trap party that on the instructions of Harpal Singh Bundela, he had handed over the money to Ganesh Rujput. Thereafter, Ganesh Rajput was caught and from his possession money was recovered. A panchnama was prepared. When the hands of Mr. Bundela were washed, there was no change in the colour of the sodium carbonate solution. However, when the hands of Ganesh Rajput were washed, the colour of sodium carbonate solution turned pink. Lokayukta Police investigated the matter and filed a charge-sheet after obtaining sanction for prosecution of the appellant. They abjured their guilt before the trial Court and pleaded that they have been falsely implicated by the complainant.
6. The prosecution examined 12 witnesses before the trial Court. After trial, considering the oral and documentary evidence, the trial Court found both appellants i.e. Harpal Singh Bendela and Ganesh Rajput guilty and awarded sentence as mentioned above in the judgment.
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CRA-896-2017 & CRA-1022-2017
7. The complainant Vishal Kumar Vinodiya turned hostile. The prosecution also examined two independence witnesses namely PW-7 Sushim Dhar and PW-9 Afzal Mansoori. Both these witnesses in their examination-in-chief supported the prosecution case, however, in cross-examination they turned hostile. The trial Court relied on the evidence of panch witnesses i.e. PW-5 Satish Kumar Kashyap and PW-1 Manish Sharma, evidence of the independent witnesses i.e. PW-7 Sushimdhar and PW-9 Afzal Mansoori, transcript and the evidence of Investigating Officer. On the basis of aforesaid evidence, the trial Court held the appellants guilty for commission of the offence.
8. The learned Senior Counsel appearing on behalf of the appellant has submitted that the trial Court has committed an error of law in holding that there was demand of bribe. The trial Court wrongly relied on the evidence of the complainant, who turned hostile and the evidence of PW-7 Sushimdhar and PW-9 Afzal Mansoori, who also did not support the prosecution case. It is further submitted by the learned Senior Counsel that the transcript of recorded conversation is inadmissible in evidence because the provisions of Section 65(b) of Indian Evidence Act (hereinafter referred as 'the Evidence Act') have not been complied with. The appellant Harpal Singh Bundela had lodged FIR against the complainant and other two independent witnesses and there was enmity amongst them. The trial Court has
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CRA-896-2017 & CRA-1022-2017 overlooked the aforesaid facts. In support of his contentions, learned Senior Counsel relied on the following judgments:
A. Jagdish Chandra Makhija vs State of Madhya Pradesh, 1990 MPLJ 239;
B. P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr., (2015) 10 SCC 152;
C. Anvar P.V. vs P.K. Basheer and others, (2014) 10 SCC 473;
D. Banarsi Dass vs State of Haryana, (2010) 4 SCC 450; E. C.M. Girish Babu vs CBI, Cochin, (2009) 3 SCC 779; F. M. Harshan vs State of Kerala, (1996) 11 SCC 720; G. T.K. Ramesh Kumar vs State through Police Inspector, Bangalore, (2015) 15 SCC 629;
H. C. Sukumaran vs State of Kerala (2015) 11 SCC 314; I. C.B.I. Vs Ashok Kumar Aggarwal, (2014) 14 SCC 295; J. B. Jayaraj vs State of Andhra Pradesh, (2014) 13 SCC 55; K. Satvir Singh vs State of Delhi, Through CBI, (2014) 13 SCC 143;
L. V. Sejappa vs State by Police Inspector Lokayukta, Chitradurga, (2016) 12 SCC 150;
M. Ajay Kumar Parmar vs State of Rajasthan, (2012) 12 SCC 406 and N. Raghbir Singh vs State of Punjab, (1976) 1 SCC 145.
9. Learned counsel appearing on behalf of Lokayukta Organization has submitted that there is a complaint on record lodged by the complainant. Conversation of the appellant Harpal Singh Bundela and the complainant was recorded and the conversation proves the factum of demand of money. On instruction of Mr. Bundela, the money was handed over to Mr. Rajput and there is ample evidence to this effect. Mr. Rajput was
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CRA-896-2017 & CRA-1022-2017 caught red handed. The trial Court has rightly appreciated the evidence and held the appellants guilty for commission of the offence. In support of his contentions, learned counsel relied on the following judgments:
A. Satpal vs State of Punjab, (2011) 14 SCC 650; B. M.O. Shamsudhin vs State of Kerala, (1995) 3 SCC 351;
C. Vithal Dattatreya Kulkarni and others vs Smt. Shamroo Tukaram Powar and other, AIR 1979 SC 1121; D. State of Punjab vs Through Labour Court, Jullundhur and others, AIR 1979 SC 1981;
E. Khujji W Surendra Tiwari vs State of Madhya Pradesh (1991) 3 SCC 627;
F. Girija Prasad (dead) by LRs vs State of Madhya Pradesh, (2007) 7 SCC 625;
G. M. Narsinga Rao vs State of Andhra Pradesh, (2001) 1 SCC 691;
H. Vinod Kumar vs State of Punjab, (2015) AIR SC 1206; I. Dharmraj vs State of Madhya Pradesh, 1989 (1) Crimes 265;
J. Hazari Lal vs The State (Delhi Admn.), AIR 1980 SC 873 and K. Rajesh Singh s/o Nageshwar Singh (Dr.) vs State of M.P., (2007) 1 MPLJ 154.
10. Now, the first question for determination is whether the prosecution has proved the demand? It is well settled principle of law that in order to convict a public servant, the prosecution has to prove beyond reasonable doubt that there was a demand of illegal gratification. It is sine qua non for constituting the offence under Section 7 of the Act of 1988.
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CRA-896-2017 & CRA-1022-2017
11. The Hon'ble Court in the case of V. Sejappa vs State by Police Inspector Lokayukta, Chitradurga, (2016) 12 SCC 150 has held as under:
"10. In order to constitute an offence Under Section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55, wherein this Court held as under:
"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. (2010) 15 SCC 1 and C.M. Girish Babu v. CBI (2009) 3 SCC 779."
The same view was reiterated in P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr., (2015) 10 SCC 152."
12. The Hon'ble Apex Court in the case of V. Sejappa (supra) has held as under in regard to presumption which would arise under Section 20 of Prevention of Corruption Act :
"18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would
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CRA-896-2017 & CRA-1022-2017 arise Under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the Appellant and mere recovery of money was not enough to draw the presumption Under Section 20 of the Act.
19. After referring to Surajmal v. State (Delhi Administration), (1979) 4 SCC 725, in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779, it was held as under:
18. In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
20. In State of Kerala and Anr. v. C.P. Rao, (2011) 6 SCC 450, it was held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corroboration of the testimony of the complainant regarding the demand of bribe."
13. Ex.P1 is the complaint, which is lodged by the complainant Vishal Kumar Vinodiya. PW-1 Manish Sharma, who is Project Officer in the office of Child and Women Development Department, Jabalpur, verified the fact that before him the complaint was made and he had read the complaint. He further deposed that he had also listened the voice, which was recorded in the voice recorder. The transcript was prepared, which is Ex.P2 and he singed the same. It is mentioned in the complaint that a demand of money was made from the complainant by Mr.
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CRA-896-2017 & CRA-1022-2017 Bundela for preparing a learning driving license. PW-5 Satish Kumar Kashyap, who was working as Assistant District Excise Officer, at the relevant time, in the office of District Excise Officer, Jabalpur deposed that Mr. Pachouri had called him to participate in a trap as a panch witness and he had read the complaint Ex.P1 and also signed the complaint. The complainant had told him that Mr. Bundela had made a demand of Rs.6000/-.
He had heard the transcript of the DVR. Thereafter, complainant-
Mr. Vinodiya had handed over 500-500 Rs. notes to Lokayukta Police and phenolphthalein powder was smeared and, thereafter, trap party proceeded on the spot i.e. R.T.O. office.
14. PW-6 complainant Vishal Kumar Vinodiya turned hostile. He deposed that he did not make any complaint before Lokayukta Organization and he came to know that Mr. Sushildhar and Mr. Afzal Mansoori had made a complaint in his name. The complainant denied his signature on the complaint Ex.P32. He also denied his signature on Ex.P33. He further denied the fact that he had gone to Lokayukta Police and also denied his signatures on the tape return panchnama Ex.P29 and transcript Ex.P2. He also denied his signatures on Ex.P1. He further denied the fact that any trap was organized before him and he had participated in the trap. He also denied his signatures on the application submitted by him for driving license Ex.P10. He also denied the fact that he had made any complaint against Mr.
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CRA-896-2017 & CRA-1022-2017 Bundela. In his cross-examination, he deposed that Mr. Sushildhar and Mr. Afzal Mansoori wanted to frame appellant-
Mr. Bundela. He denied the fact that DVR was played before him and thereafter, the transcript Ex.P2 was prepared.
15. PW-7 Sushim Dhar deposed that he is a worker of Congress Party and he had gone with Mr. Afzal Mansoori and Vishal Vinodiya to Lokayukta Office, Jabalpur. He further deposed that he and Mr. Mansoori were standing outside of the building. He further deposed that he had gone to Lokayukta office in the morning and 3-4 persons namely Mr. Pachouri, Shukla and Maheshwari etc. were there. Thereafter, he, Afzal Mansoori and other officers had gone to learning license office at Aga Chowk and Mr. Pachouri had told him that he would be a witness of the complaint of Mr. Vishal Kumar Vinodiya. When Mr. Bundela came there, he called Mr. Vishal Vinodiya and inquired from him whether he had brought the money and, thereafter, he had instructed him to hand over the money to another person Ganesh Rajput. Thereafter, complainant Vishal Vinodiya had handed over the money to Ganesh Rajput and then Lokayukta team came there and they had catch hold Ganesh Rajput. Notes were seized from the rack of the table. Thereafter, he and Mansoori had come out from the office. He was again cross-examined on 21.07.2015 and on the aforesaid date, he had taken U-turn and denied the fact that he had signed any paper. He also denied the fact that he had gone
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CRA-896-2017 & CRA-1022-2017 to Lokayukta office. He further deposed that he had no knowledge that what had happened at the Lokayukta office. He further denied the fact that he was present during trap.
16. PW-9 Afzal Mansoori initially deposed the same facts as deposed by PW-7 that he had gone to Lokayukta office when the complainant-Mr. Vishal Kumar Vinodiya had made the complaint that money was demanded from him. He further deposed that the complainant had told him that Mr. Bundela had made a demand of money for preparing license and on his instructions he had paid the money to Mr. Ganesh Rajput and thereafter, Lokayukta police came there. This witness has denied the fact that he was present when the money was demanded. He is declared hostile. In para 16 of his cross-examination, he deposed that on 28.09.2012 he, Sushimdhar and other persons had gone to Bhopal to meet Congress persons. They reached at around 6-7 O'clock in the evening and between 2-5 O'clock they were traveling to Bhopal. He further deposed that he returned back from Bhopal to Jabalpur on 30.09.2012.
17. Apart from this evidence, there is evidence of panch witnesses namely PW-1 Manish Sharma and PW-5 Satish Kumar Kashyap, who are the officers of the Government. They deposed that the complainant had lodged a complaint in regard to demand, however, these witnesses were not present on the spot when it is
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CRA-896-2017 & CRA-1022-2017 alleged that the appellant Mr. Bundela had instructed the complainant to hand over the money to Mr. Rajput. On the spot, presence of PW-7 Sushimdhar is mentioned. In his cross-
examination, he turned hostile. There is enmity amongst Sushimdhar, Afzal Mansoori and appellant-Mr. Bundela.
18. PW-8 Mr. M.D. Mishra, who is the witness of prosecution, deposed that he knows the complainant-Mr. Vishal Vinodiya since 2012. He also knows Mr. Sushimdhar and Mr. Afzal Mansoori. Mr. Sushimdhar, Mr. Afzal Mansoori and 50 other persons had broken the furniture of R.T.O. office. He deposed that he and Harpal Singh Bundela had gone to Lordganj Police Station to lodge a report against Mr. Sushimdhar and Mr. Afzal Mansoori and a criminal case was registered against them. Mr. Sushimdhar and Mr. Afzal Mansoori were working as agents in the R.T.O. office and the employees of R.T.O. office made a complaint to the Transport Commissioner, Gwalior against aforesaid persons, which is Ex.D2 and Ex.D3. It was also signed by the appellant Harpal Singh Bundela. Mr. Bundela also lodged a FIR against Mr. Sushimdhar and Afzal Mansoori at police station on 11.01.2011, which is Ex.D4 and a criminal case was also registered. Mr. Bundela also lodged a report on 03.08.2012 against Afzal Mansoori and Sushimdhar as they had tried to abstract the work in the R.T.O. office. He further admitted the fact that the complainant appeared so many times in the test for
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CRA-896-2017 & CRA-1022-2017 obtaining learning license and he failed in the tests. Another complaint was filed by the employees of R.T.O. office against Sushimdhar, Afzal Mansoori and others to the District Collector, which is Ex.D-36.
19. From the documentary evidence as well as the oral evidence, it is clear that the employees of R.T.O office made complaint against Mr. Sushimdhar and Mr. Afzal Mansoori. Copy of the same is Ex.D2. It is mentioned in the complaint that aforesaid two persons used to abuse the officers and they indulged in illegal activities and they have submitted forged memorandums. It is signed by the employees of R.T.O. office including the appellant-Mr. Bundela, which is Ex.D3. Ex.D4 is the FIR lodged by the appellant Harpal Singh Bundela. It is mentioned in the complaint that Afzal Mansoori and Sushimdhar had abused the complainant Mr. Bundela and they had entered in the office and had broken the furniture. Ex.D5 is another complaint against Afzal Mansoori and Sushimdhar by the employees of R.T.O. office including Mr. Bundela. It is mentioned in the complaint that these persons had threatened the employees. Ex.D36 is the another complaint against Mr. Sushimdhar and Afzal Mansoori. It is mentioned in the complaint that these two persons used to apply undue pressure to issue learning license. It is also signed by the appellant-Harpal Singh Bundela and other employees.
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CRA-896-2017 & CRA-1022-2017
20. This documentary evidence proves the fact that the employees of transport office including appellant-Mr. Bundela made complaints against Afzal Mansoori and Sushimdhar. They were agents working illegally to get license at the transport office. They had enmity with appellant-Bundela. Hence, they were the interested witness as well as inimical witness. Their evidence has to be examined carefully as held by the Hon'ble Apex Court in the case of Raju @ Balachandran and others vs State of Tamil Nadu, (2012) 12 SCC 701. The Apex Court in the aforesaid judgment has considered the categories of witnesses and one of the category of the witness is interested witness. The Witnesses who have interest in saying that the accused be punished, they are interested witnesses. Hence, these witnesses be categorized as interested witnesses. The Apex Court in this regard has held as under:
"27. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab, (AIR 1965 SC 328). This Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the "enemy" of the victim. This is what this Court said:
"There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family,
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CRA-896-2017 & CRA-1022-2017 criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it........ [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
28. More recently, in Waman v. State of Maharashtra, (2011) 7 SCC 295 this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, (1976) 4 SCC 369, Balraje v. State of Maharashtra, (2010) 6 SCC 673, Prahlad Patel v. State of Madhya Pradesh, (2011) 4 SCC 262, Israr
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CRA-896-2017 & CRA-1022-2017 v. State of Uttar Pradesh, (2005) 9 SCC 616, S. Sudershan Reddy v. State of Andhra Pradesh, (2006) 10 SCC 163, State of Uttar Pradesh v.
Naresh, (2011) 4 SCC 324, Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 and Vishnu v. State of Rajasthan, (2009) 10 SCC 477 it was held:
"20. It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care."
29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh vs State of Punjab, (AIR 1953 SC 364) and pithily reiterated in Sarwan Singh vs State of Punjab, (AIR 1976 SC 2304) in the following words: -
"10..... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
21. In view of the aforesaid and the fact that the witnesses have turned hostile in their cross-examination and the fact that I.O. PW-11 did not mention in his evidence that these persons (PW-7
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CRA-896-2017 & CRA-1022-2017 and PW-9) reached at the spot at the time of trap. Their evidence has to be discarded.
22. The Apex Court in the case of B. Jayaraj vs State of Andhra Pradesh, (2014) 13 SCC 55 has held as under in regard to conviction of an officer on the basis of evidence of panch witnesses and the fact that the complainant has turned hostile:
"8. In the present case, the complainant did not support the prosecution case in so far 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 (Exbt.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 Exhibit 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 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 in so far as the offence under Section 13(1)(d)(i)(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."
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CRA-896-2017 & CRA-1022-2017 In the present case also, the complainant turned hostile and he did not support the prosecution in regard to demand.
23. In the present case, panch witnesses were not present at the time of trap. They reached on the spot subsequently. The evidence of Mr. Sushimdhar and Afzal Mansoori is unreliable as held earlier. Hence, there is no evidence to prove the demand so far it relates to oral evidence.
24. The trial Court has relied on the transcript and tape recorded evidence. The Investigating Officer PW-12 Madhuresh Pachouri in para 54 of his evidence admitted the fact that he or Mr. Upedndra Singh did not submit any certificate as required under Section 65(b) of Evidence Act that the electronic device was played. He also admitted in para 46 of his cross-examination that the transcript was prepared after hearing the DVR and it was prepared at the house of Mr. Harpal Singh Bundela. He further admitted in his cross-examination that for preparation of transcript he did not submit any certificate as required under Section 65(b) of Evidence Act, neither the CD which is prepared on the basis of conversation of DVR, the certificate required under Section 65(b) of Evidence Act was not produced. A CD was produced before the Court, which was kept in an envelop and the CD was played through laptop before the Court. The Court has appended a note below para 30 of the evidence of Mr.
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CRA-896-2017 & CRA-1022-2017 Madhuresh Pachouri-PW-12 that there was a sealed envelop in which article J was kept, which was a CD, which was prepared through medium laptop and on this basis transcript Ex.P-2 was prepared. The Court further observed that the CD was played before the Court through the medium of laptop. In the CD, same conversation was found which was mentioned in the transcript.
From the aforesaid evidence, it is clear that the voice recorder was not produced before the Court by which the voice was alleged to had been recorded by the complainant. The voice was transferred to laptop and thereafter, the CD was prepared and the CD was played before the Court through laptop. Investigating Officer specifically admitted in para 30 of his cross-examination that he had prepared the CD from the laptop. He further admitted the fact that no certificate as required under Section 65(b) of Evidence Act was produced before the Court. Neither another person produced the certificate required under Section 65(b) of Evidence Act.
25. The Hon'ble Apex Court in the case of Anvar P.V. vs P.K. Basheer and others, (2014) 10 SCC 473 has held as under:
"7. Electronic record produced for the inspection of the court is documentary evidence under Section 3 of The Indian Evidence Act, 1872 (hereinafter referred to as 'Evidence Act'). The Evidence Act underwent a major amendment by Act 21 of 2000 [The Information Technology Act, 2000 (hereinafter referred to as 'IT Act')]. Corresponding amendments
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CRA-896-2017 & CRA-1022-2017 were also introduced in The Indian Penal Code (45 of 1860), The Bankers Books Evidence Act, 1891, etc.
8. Section 22A of the Evidence Act reads as follows:
"22A. When oral admission as to contents of electronic records are relevant.- Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question."
9. Section 45A of the Evidence Act reads as follows:
"45A. Opinion of Examiner of Electronic Evidence.-When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section 79A of the Information Technology Act, 2000(21 of 2000)., is a relevant fact.
Explanation.--For the purposes of this section, an Examiner of Electronic Evidence shall be an expert."
10. Section 59 under Part II of the Evidence Act dealing with proof, reads as follows:
"59. Proof of facts by oral evidence.--All facts, except the contents of documents or electronic records, may be proved by oral evidence."
11. Section 65A reads as follows:
"65A. Special provisions as to evidence relating to electronic record: The contents of electronic records may be proved in accordance with the provisions of section 65B."
12. Section 65B reads as follows:
"65B. Admissibility of electronic records:(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a
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CRA-896-2017 & CRA-1022-2017 computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-
section (1) in respect of a computer output shall be the following, namely: -
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether -
-:- 22 -:-
CRA-896-2017 & CRA-1022-2017
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, -
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-
section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, -
-:- 23 -:-
CRA-896-2017 & CRA-1022-2017
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process."
These are the provisions under the Evidence Act relevant to the issue under discussion.
13. In the Statement of Objects and Reasons to the IT Act, it is stated thus:
"New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the way people transact business."
In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.
14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance
-:- 24 -:-
CRA-896-2017 & CRA-1022-2017 with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings
-:- 25 -:-
CRA-896-2017 & CRA-1022-2017 pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the
-:- 26 -:-
CRA-896-2017 & CRA-1022-2017 Evidence Act are not complied with, as the law now stands in India."
26. The Apex Court in the case of Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke and others, (2015) 3 SCC 123 has considered in detail the legal provisions and the provisions of Section 65(b) of Evidence Act when electronic evidence is admissible in evidence and has held as under:
"16. It is to be noted that in the first complaint filed by the second respondent - the de facto complainant, there is no allegation for any demand for bribe by the appellant. The allegation of demand is specifically against accused no.2 only. That allegation against the appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure-B report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. Learned Counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer and others, (2014) 10 SCC 473.
27. The principal of law, as laid down by the Apex Court, is that if electronic record is duly produced in terms of Section 65(b) of Evidence Act then it is admissible in evidence and for that a certificate is necessary of a person as required in specifications as mentioned in para 15 of the judgment of the Apex Court.
-:- 27 -:-
CRA-896-2017 & CRA-1022-2017
28. In the present case, no such certificate was produced.
Neither the voice recorder was produced before the Court nor it is was examined by the Court. Hence, in my opinion, the trial Court has committed an error of law in relying the transcript and electronic evidence. This evidence is inadmissible in law.
29. On the basis of aforesaid discussion, it is clear that the prosecution has failed to prove the fact of demand of illegal gratification by appellant-Harpal Singh Bundela. It is also an admitted fact that the money was not recovered from Harpal Singh Bundela. It was recovered from another appellant Ganesh Rajput, who in his statement of accused submitted that he was working as a labour.
30. The apex Court in the case of Banarsi Dass vs. State of Haryana, (2010) 4 SCC 450 has held as under in regard to proof of illegal gratification, demand and voluntarily acceptance in view of Section 5 (2) and 1 (d) of the Act of 1988:
"23. To constitute an offence under Section 161 of the IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused.
24. In the case of M.K. Harshan v. State of Kerala [1996 (11) SCC 720], this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the
-:- 28 -:-
CRA-896-2017 & CRA-1022-2017 same and said that it was put in the drawer without his knowledge, held as under :
".......It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW-1. Since PW-1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW-1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable".
25. Reliance on behalf of the appellant was placed upon the judgment of this Court in the case of C.M. Girish Babu (supra) where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in para 18 and 20 of the judgment held as under :
"18. In Suraj Mal v. State (Delhi Admn.) [1979 (4) SCC 725] this Court took the view
-:- 29 -:-
CRA-896-2017 & CRA-1022-2017 that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
20. A three-Judge Bench in M. Narsinga Rao v. State of A.P.[2001 (1) SCC 691: SCC (Cri) 258] while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p.
700, para 24) "24. ... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra [2000 (8) SCC 571]).The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel:
(Madhukar case, SCC p. 577, para 12) `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
-:- 30 -:-
CRA-896-2017 & CRA-1022-2017 mean any payment for giving satisfaction to the public servant who received it."
In fact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case (supra), where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthan [1975 (2) SCC 227], where similar view was taken.
26. The case of C.M. Girish Babu (supra) was registered under the Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case."
27. The apex Court further in the case of Selvaraj Vs. State of Karnatka (2015) 10 SCC 230 has again considered the case laws on the above subject and held as under:-
"17. In A. Subair v. State of Kerala [2009 (6) SCC 587], this Court has laid down that illegal gratification has to be proved like any criminal offence and when the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest the conviction on such evidence. This Court while recording acquittal, has laid down thus :
"31. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge
-:- 31 -:-
CRA-896-2017 & CRA-1022-2017 committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt.
18. in State of Kerala & Anr. v. C.P. Rao [2011 (6) SCC 450], it has been laid down that recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of the testimony of the complainant regarding the demand of bribe and when the complainant is not available for examination during the trial, court has to be cautious while sifting the evidence of other witnesses. Charge has to be proved beyond reasonable doubt. This Court has laid down thus :
"12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in para 28 of A. Subair (supra) made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court.
13. In coming to this conclusion, we are reminded of the well settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court is an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan [1961 (3) SCR 120]. At page 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows :
-:- 32 -:-
CRA-896-2017 & CRA-1022-2017 "9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case [(1934-34) 61 I.A. 398] afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and
(iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified."
19. In G.V. Nanjundiah v. State (Delhi Administration) [1987 (Supp) SCC 266], it was laid down that the allegation of bribe taking should be considered along with other material circumstances. Demand has to be proved by adducing clinching evidence. When the fact indicating that the complainant was aware of the amount, was not withheld by the accused, this Court disbelieved the allegation of the complainant meeting the accused and presence of strangers at the time of giving bribe was held to be unnatural.
20. Thus, acceptance of the bribe has not been established by adducing cogent evidence......."
31. The Apex Court in the case of T.K. Ramesh Kumar vs State through Police Inspector, Bangalore, (2015) 15 SCC 629 has clearly held as under that only on the basis of recovery of
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CRA-896-2017 & CRA-1022-2017 tainted money, a person cannot be convicted under Section 13(1)
(d) read with Section 13(2) of the Act of 1988:
"In our considered view, the said approach adopted both the by the trial court and the appellate court is not only erroneous but also an error in law and, therefore, the finding recorded on the above aspect of demand of illegal gratification made by the appellant with the complainant and his father cannot be sustained in law. Therefore, submission of the learned Senior Counsel that the finding on the charges against the appellant is erroneous for the reason that demand of illegal gratification by the appellant, as required under Section 7 of the Act, with the complainant and his father for issuing khata certificate of the property, is not established by the prosecution. His submission is well founded. The same must be accepted.
12. In this regard it would be appropriate for this Court to refer to the decision of this Court in Mukut Bihari vs State of Rajasthan, (2012) 11 SCC 642, which reads thus:
"11. The law on the issued is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence, in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only
-:- 34 -:-
CRA-896-2017 & CRA-1022-2017 on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
32. The apex Court in the case of C.M. Girish Babu vs CBI, Cochin, (2009) 3 SCC 779 has held in regard to burden placed on prosecution to prove case beyond reasonable doubt:
"18. In Suraj Mal Vs. State (Delhi Admn.) reported in [(1979) 4 SCC 725], this court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show the accused voluntarily accepted the money knowing it to be bribe.
19. The learned counsel for the CBI submitted that the onus of proof was upon the appellant to explain as to how he came into possession of the amount recovered from him during the trap. The argument of the learned counsel is obviously based on Section 20 of the Prevention of Corruption Act, 1988 which reads as under:
"20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under Section 7 of Section 11 or clause (a) or clause (b) of sub- section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed
-:- 35 -:-
CRA-896-2017 & CRA-1022-2017 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) (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."
20. A three-Judge Bench in M. Narsinga Rao Vs. State of A.P. (2001) 1 SCC 691 while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed:
"........................we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra.) The following
-:- 36 -:-
CRA-896-2017 & CRA-1022-2017 statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: (SCC p.577, para 12) The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted `as motive or reward' for doing or forbearing to do any official act. So the word `gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like `gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word `gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.
22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. "It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 under the Prevention of Corruption Act. It is sufficient if the
-:- 37 -:-
CRA-896-2017 & CRA-1022-2017 accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." (See Jhangan Vs. State 1966 (3) SCR 736). (Emphasis supplied)."
32. From the above quoted judgments, it is clear that proof of demand and illegal gratification is necessary for establishing the offence under 'the Act of 1988' and in absence of thereof, the charge, therefore, would fail because the prosecution has failed to prove unequivocally demand of illegal gratification.
33. On the basis of the above discussion, in my opinion, the trial Court has committed an error of law in holding the appellants guilty for commission of offence punishable under Section 7, 13(1)(d) read with Section 13 (2) of the Act of 1988 and Section 8 of the Act of 1988. Consequently, the appeals filed by the appellants are allowed. The judgment passed by the trial Court is hereby set aside. The appellants are acquitted from the charges.
The appellants are on bail; their bonds are discharged. Fine amount, if deposited, be refunded back to the appellants.
(S.K. Gangele) Judge vkt