Pardeep Kumar Sharma vs State on 9 January, 2018

[Cites 17, Cited by 0]

Jammu & Kashmir High Court

Pardeep Kumar Sharma vs State on 9 January, 2018

Bench: M. K. Hanjura

                      HIGH COURT OF JAMMU AND KASHMIR
                                  AT JAMMU

CRA No.31/2007.
MP Nos.8/2008 & 52/2007.

                                                              Date of order: 09.01.2018
                   Pardeep Kumar Sharma                      V.      State
Coram:
                 Hon'ble Mr. Justice M. K. Hanjura, Judge

Appearing counsel:
For Petitioner/appellant(s) :        Mr. Sunil Sethi, Senior Advocate with
                                     Mr. Waheed Choudhary, Advocate.
For respondent (s)             :     Ms. Monika Kohli, Advocate.

i) Whether approved for reporting in Law journals etc. : Yes/No

ii) Whether approved for publication in press : Yes/No

1) In this appeal, the appellant has assailed the judgment dated 29.12.2007 passed by the Special Judge, Anti-Corruption, Jammu, by which the appellant has been convicted under Section 5(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for a period of two years, with the payment of a fine of Rs.5,000/- in default whereof he has been directed to undergo rigorous imprisonment for a further period of two months. The appellant has also been convicted for an offence under Section 161 RPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5000/- failing which it has been directed that he shall undergo rigorous imprisonment for a further period of two months. It has also been directed that both the sentences shall run concurrently. The appellant has craved the indulgence of this Court in setting aside the judgment of conviction of the trial Court and acquitting him of the charges leveled against him.

2) The facts of the case chiseled in a nutshell are that an FIR for offences under Section 161 Cr. P.C. and 5(2) read with 5(1)(d) of the Jammu and CRA No.31/2007 Page 1 of 17 Kashmir Prevention of Corruption Act, was registered against the appellant on the basis of an oral complaint of the complainant, namely, Layaqat Ali S/o Sh. Sain Ali R/o Sector-C, Sainik Colony, Jammu. This complaint was reduced to writing in English in the office of CBI/ACB, Jammu. The complainant stated in the complaint that the appellant demanded an illegal gratification of Rs.1500/- from him for handing over a cheque relating to an accidental claim of the vehicle of his brother. On the registration of the case, a trap team comprising of CBI Officers/Officials and two independent witnesses, namely, Sh. D. S. Sharma, Divisional Consumer Manager and Sh. Padam Pandey, Divisional Retail Manager, both working in the Indian Oil Corporation Ltd., Jammu, was constituted. In the pre-trap formalities, a practical demonstration of the chemical reaction of phenolphthalein powder with sodium carbonate solution was given to the members of the trap team. The complainant produced seven currency notes. These were treated with phenolphthalein powder and were kept in the upper left pocket of the complainant with the direction to hand over the same to the appellant, if he demands the same. The numbers of the currency notes were incorporated in the pre-trap memo. Sh. Padam Pandey was requested to act as a shadow witness and try to remain in the close proximity of the complainant and also to hear the conversation of demand and acceptance of bribe money between the complainant and the appellant. He was also requested to give a signal to the members of the trap team by combing his hair with his left hand after the transaction of the bribe was over. The trap team accompanied by the complainant and the two independent witnesses left the CBI office at 13.15 hours in official Gypsies and two wheelers and reached Gandhi Nagar, Last Morh, Jammu, at 1325 hrs. The complainant stood on the road side at the prefixed place with the appellant. The other members of the trap team and the witnesses took suitable positions in front of different shops situated on the road. The appellant reached at the spot on a Vespa Scooter. He stopped the scooter in front of the complainant and asked him to sit on the scooter.

CRA No.31/2007 Page 2 of 17

Thereafter he drove the scooter towards Gandhi Nagar, Police Station through an inner road. The independent witnesses and the members of the trap team followed him on two wheelers and the Gypsies. The appellant stopped his scooter in front of Police Station, Gandhi Nagar, for a minute. He then drove back towards the main stop Gandhi Nagar, and finally stopped his scooter in front of Arches Gallery near Bansi Temple. He demanded Rs.1500/- from the complainant and on this, the complainant took out the tainted money from his pocket and kept the same in the left outer pocket of the jacket of the appellant. The complainant after keeping the said amount in his pocket told him that the Cheque may be handed over to him. On this, the appellant took out the Cheque bearing No.SBP 156640 dated 29.01.2004 relating to the accidental claim of his brother for an amount of Rs.30650/- from his pocket and handed over the same to the complainant. Immediately thereafter, the members of the CBI team accompanied by the independent witnesses challenged the appellant. They disclosed their identity to him. They held the appellant by his arms. He was put in a Gypsy along with the independent witnesses, as a number of persons gathered on the spot. The wife of the appellant also appeared there and she raised a hue and cry, which resulted in a commotion. Since the situation was not conducive and did not permit the continuation of further proceedings on the spot, as such the appellant was taken towards the office of Branch Manager, NIC, Branch Office-III, Gandhi Nagar, Jammu. On the way, the vehicles were stopped. The independent witness Sh. D. S. Sharma, recovered seven number of tainted currency notes from the outer pocket of the jacket of the appellant. They counted the notes and tallied their serial numbers with the ones already incorporated in the pre-trap memo and found them to be correct. The currency notes were seized by the CBI team. After this, the appellant was taken to the office of Branch Manager, NIC, Gandhi Nagar, where his hands were washed in the solution of sodium carbonate but the colour of the solution did not change. Similarly CRA No.31/2007 Page 3 of 17 the lining wash of the left side external pocket of the appellant was also taken in the solution of sodium carbonate and the colour of the said solution turned pink. Post trap memo was prepared on the spot in which all the details were incorporated and it was signed by all concerned. The appellant was arrested on the spot.

3) After the culmination of the investigation of the case, a final report for the commission of offences falling under Section 161 RPC and Section 5(2) read with 5(1)(d) of the Jammu and Kashmir Prevention of Corruption, Act, 2006, was laid against the appellant before the trail Court. The appellant was arraigned on a charge for the commission of the aforesaid offence by order dated 20.05.2004 of the trial Court. The appellant pleaded not guilty and claimed to be tried. In support of the charge, so framed against the appellant, the prosecution produced the witnesses, namely, C. L. Bansal, PW-1, Padam Pandey PW-2. D. S. Sharma PW-3, Layaqat Ali PW-4, K. C. Sharma PW-5, Fazal Hussain PW-6, P. S. Jamwal PW-7, T. S. C. Bose PW-8 and Vijay Sadhoo PW-9. After the closure of the prosecution evidence, the statement of the accused/appellant as envisaged under Section 342 of the Code of Criminal Procedure was recorded by the trial Court. The accused/appellant denied the occurrence and pleaded his innocence. The accused/appellant did not opt to produce any evidence in defence and accordingly, the case was posted for advancing arguments, where-after the accused/appellant was convicted and sentenced for the offences detailed above.

4) The appellant has impugned the judgment of conviction and sentence imposed on him in the appeal filed before this Court on the grounds, inter alia, that the judgment under appeal is against the facts, law and canons of justice. The trial Court has not applied its mind to the facts and circumstances of the case. The ingredients of the offence with which the CRA No.31/2007 Page 4 of 17 appellant has been charged have not been proved by the prosecution. The judgment has been passed on surmises and conjectures. It has also been stated that although the complainant has turned a volte face to the prosecution case in stating that the appellant never demanded any money from him, yet the trial Court has failed to appreciate the law and the facts relevant for the determination of the case. In the end, the appellant has prayed that the judgment under appeal be set aside and he be acquitted of the charges leveled against him.

5) I have heard the arguments advanced at the bar and the material on record has also been perused by me.

6) The core issue that arises for consideration here in this appeal is whether, while recording the judgment of conviction and sentence, the prosecution evidence has been appreciated and scanned in the right perspective. The trial Court has recorded the entire evidence in its breadth and length in the impugned judgment and the same does not require to be repeated here. The trial Court, as is clear from the impugned judgment, has, after taking into consideration the entire evidence adduced by the prosecution, come to the conclusion that the accused is guilty of the commission of crime for which he has been inculpated.

7) In criminal appeal No.1163 of 2017 arising out of SLP (Criminal) No.207 of 2016 bearing the title "Mukhtiar Singh vs. State of Punjab", the Apex Court of the Country while dealing with a case of trap where the accused was alleged to have demanded an amount of Rs.2000/- from the complainant and the High Court held that the demand of Rs.2000/- and receipt thereof has been established by the prosecution and there was no reason for the prosecution or its witnesses to lie against the original accused. The High Court further recorded that although there was no direct CRA No.31/2007 Page 5 of 17 demand of illegal gratification by the original accused from the complainant in the presence of the shadow witness at the police station, yet the query made by original accused of the money being brought or not did amount to such a demand. In addition, the receipt of the currency notes of Rs.2000/-, which were recovered by the trap team, did not substantiate the accusation of demand as well and the High Court held that the imputation of false implication at the instance of the Superintendent of Police, as made by the original accused in his 313 Cr. P. C. statement, in the absence of any evidence, did not merit acceptance. The High Court affirmed the conviction and sentence awarded to the accused by the trial Court. In the appeal, the Supreme Court held as follows:-

"14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in "State of Kerala vs. C. P. Rao", that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

15. In P. Satyanarayana Murthy(supra), this Court took note of its verdict in B. Jayaraj vs. State of A. P., underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only CRA No.31/2007 Page 6 of 17 the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder:

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

(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two Sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder."

16. The textual facts in Somabhai Gopalbhai Patel (supra) and Mukhtiar Singh (supra) and the quality of evidence adduced by the prosecution are clearly distinguishable and are thus of no avail to the prosecution as would be discernible from the analysis of the materials on record.

17. It is in the above adumbrated legal enjoinment, that the evidence on record has to be scrutinized. Having regard to the gravamen of the charge and the imperatives of demand of illegal gratification, the receipt and recovery thereof, the evidence on record relatable thereto only need be noticed."

CRA No.31/2007 Page 7 of 17

8) Testing the instant case on the scales and the parameters of law laid down above, the complainant Layaqat Ali PW-4, has stated in his statement that the appellant reached at the fixed place on a scooter. He too boarded the scooter. He requested the appellant to give him the Cheque. The appellant took out the Cheque from his pocket and gave it to him. The appellant did not demand the bribe money from him. Since the CBI team was with him, therefore, he took out the currency notes from his pocket and put them into the pocket of the jacket of the appellant. At that juncture he asked the appellant to stop the scooter. He alighted from the scooter. The appellant also left the place on his scooter. The CBI team caught hold of him. They took him in the office and he does not know what happened thereafter. He signed some documents, the contents of which were not read over to him. He has been declared as hostile by the prosecution. In the cross- examination he has stated that although he told the CBI officials that his claim petition is with the appellant, yet he never told them that the appellant ever demanded any money from him for the delivery of the Cheque. He produced an amount of Rs.1500/- before the CBI Officer on his asking. He put the currency notes into the pocket of the appellant as he was directed to pay the same to the appellant. These notes were not recovered from the pocket of the appellant in his presence. It is correct to state that when he alighted from the CBI vehicle, he was alone. When cross-examined by the defence counsel he has stated that he came to know about the identity of the appellant at a time when the appellant was in the CBI office and that he did not mention the name of the appellant in his report.

9) Padam Pandey, PW2, the shadow witness has stated that he was summoned by the Additional S. P. Jammu, named, Mr. Bose, to his office on telephone. He went to his office along with his colleague Mr. D. S. Sharma. Someone was already there in the room of Mr. Bose. He was introduced to him as Layaqat Ali. Layaqat Ali stated before him that an CRA No.31/2007 Page 8 of 17 employee of the National Insurance Company demanded bribe from him for doing some favour to him. Layaqat Ali submitted a written complaint, which was signed by him in Urdu. He has proceeded to state that after giving a demonstration of the reaction of sodium carbonate and phenolphthalein powder in the CBI office, all the members of the trap team proceeded towards the market, known as Last Morh, Gandhi Nagar, Jammu and they took their positions on the directions extended by Mr. Bose. After ten minutes, the appellant reached there on a scooter. He signaled the complainant to board his scooter. He took him to a lane. He has further stated that he chased the complainant and the appellant on a scooter driven by some CBI official. The appellant parked his scooter in front of a shop. They entered into some conversation. The complainant took out the currency notes from his pocket and put them in the pocket of the Jacket of the appellant. All the members of the trap team reached there. Mr. Bose introduced himself to the appellant. He asked the appellant as to whether he had taken the bribe and on this, appellant answered that he has committed a mistake. A number of persons assembled there. Thereafter, Mr. Bose directed the members of the trap team and the appellant to board the Gypsy. He took them to the office of National Insurance Company situated at Last Morh Gandhi Nagar, Jammu. On the way, Mr. Bose stopped the vehicle and directed Mr. D. S. Sharma, witness to search the person of the appellant. He took out the currency notes from the pocket of the appellant.

10) Looking at the statements of the complainant, what transpires is that the appellant did not demand an amount of Rs.1500/- from the complainant as alleged by the prosecution. The complainant has demolished the entire prosecution edifice by stating that it was he who put the money into the pocket of the appellant while he was driving the scooter. He has also stated that while driving the scooter the appellant took out the Cheque from CRA No.31/2007 Page 9 of 17 his pocket and gave it to him. He has also stated that since the CBI team was with him, therefore, he took out the currency notes from his pocket and put the same into the pocket of the jacket of the appellant as had been directed by Mr. Bose.

11) There is not even a whisper in the statement of the shadow witness to state that he heard the appellant demanding the bribe money from the complainant and as a consequence of this demand of the complainant he paid the bribe money to the appellant who in turn accepted it and put the same in his pocket. The basic ingredients of the offence with which the appellant has been charged i.e. proof of the demand of illegal gratification which is a sine-qua-non for implicating a person for the commission of offences imputed to the appellant has not been proved by the prosecution. No other witness, examined by the prosecution in the case, has stated that he either heard or saw what transpired between the appellant and the complainant. Therefore, the charge against the accused would fail as has been held in the law cited above. The evidence produced by the prosecution is of no avail to the prosecution, as has come to the fore from the above analysis of the material evidence on record. The baseline of the prosecution case is the testimony of the complainant and the shadow witness. The complainant has been specific in stating that the accused/ appellant did not make any demand for the payment of money to him. The shadow witness has failed to give an account of the conversation made by the complainant and the accused. He has not stated it anywhere that he heard the accused/appellant extending the demand regarding the payment of bribe money to him. The pre-requisite to constitute the ingredients of the offence with which the appellant had been charged i.e. demand of illegal gratification of an amount of Rs.1500/- is, therefore, wholly inadequate to bring home the charge leveled against the appellant. The appellant could CRA No.31/2007 Page 10 of 17 not have been convicted on the allegations which appear to be omnibus, vague and sweeping.

12) Looking at the instant case from another perspective, the prosecution version is that the appellant demanded the bribe money of Rs.1500/- from the complainant for clearing a Cheque that had to be paid to his brother in an accident claim. The prosecution evidence does suggest that the appellant handed over the Cheque to the complainant. The complainant has stated that the accused/appellant handed over the Cheque to him and he put the money in his pocket at a time when he was driving the scooter. There is not even a murmur to state that the accused extended any demand for the payment of bribe money in lieu of the delivery of the Cheque to him and the complainant paid him the money which the accused/appellant accepted.

The contention of the trial Court that has formed the bedrock of recording a conviction against the appellant is as under:-

"26. The statement of the complainant though silent on the fact of demand of bribe money is worth appreciation. As already stated the factum of demand can either be proved by direct or by circumstantial evidence. It is incorporated in the complaint EXPW-LA/1, which stands proved that the accused had demanded Rs.1500/- from the complainant, which was to be paid to him on 09.02.2004 at 1.30 PM near Market Last Morh, Gandhi Nagar, Jammu as settled between them. It means the place where the bribe amount was to be paid was known to the complainant and the accused and that is why the complainant took the trap team to that place at the stipulated time. The time and place have been proved by other prosecution witnesses also. The evidence on the record is such that the accused would not have come there by coincidence but the meeting point was fixed between the complainant and the accused. The accused reached there at a stipulated time and the complainant got on the pillion of the scooter and in the way, he was asked him to pay him the Cheque. Had their CRA No.31/2007 Page 11 of 17 intention been clear, the accused would have called him to his office and gave him the cheque there but instead he took the complainant on his scooter to a safer place where the complainant put the bribe money in the pocket of the jacket of the accused and he reciprocated the acceptance of the bribe money by taking out the Cheque of insurance claim from his pocket and handed over the same to the complainant, which was later on recovered from him. The accused accepted the illegal gratification without showing any resentment and he gave the claim Cheque to the complainant only when he was bribed by him. Had he not intended to accept it, he would have objected to putting of the bribe money in his pocket but he humbly accepted it and in lieu of it, he handed over the claim Cheque to the complainant, which was with him for the last 7/8 months and without accepting the bribe money, he was not willing to hand over the same to the complainant, who remained visiting his office during that period. The conduct of the complainant and the accused have proved that the accused had demanded an illegal gratification from the complainant for releasing the claim Cheque in his favour, which was paid to him at a stipulated time and place and thereafter, he gave the claim Cheque to the complainant. It has been confirmed by the recovery of the bribe amount from the same pocket of the jacket of the accused where the complainant had put it.

27. Now it is to be determined as to whether the fact of demand and acceptance of the bribe amount and it is subsequent recovery from the accused has been proved and corroborated by other prosecution witnesses or not. Padam Pandey PW-2 is a Divisional Retail Sales Manager, Indian Oil Corporation and during the trap, he was assigned the role of a shadow witness and was directed to remain with the complainant and hear the conversation between the complainant and the accused. He has categorically stated that all the trap team members reached the Market Last Morh, Gandhi Nagar where the accused came on his scooter and signaled the complainant to board it and took him to a lane. He followed him on a scooter of a CBIU official. The accused took his scooter to Gole Market, Gandhi Nagar and stopped it near a shop. He said something to the complainant and pointed towards his pocket and on this, the complainant brought out the money CRA No.31/2007 Page 12 of 17 from his pocket and put the same in the pocket of the jacket of the accused. All the trap team members reached there and the accused became nervous and confessed his guilt. Thereafter, the bribe amount was recovered from the pocket of the jacket of the accused by D. S. Sharma PW-3 on the direction of T. S. C. Bose PW-8. This witness is a senior officer of Indian Oil Corporation and as such his statement cannot be thrown over board. He has corroborated the statement of the complainant so far as putting the money in the pocket of the accused is concerned. There is no ground as to why his statement should not be believed. He is an independent witness and a responsible officer and has no personal axe to grind against the accused."

13) The findings of the trial Court appear to be perverse and bad on the analogy of a catena of judicial pronouncements on the subject. In the case of M. R. Purushotham vs. State of Karnataka, (2015) 3 Supreme Court Cases 247, the Supreme Court has held that where demand of bribe is not proved by the prosecution, mere possession and recovery of currency notes from accused without proof of demand do not constitute an offence under S. 13(1)(d) r/w S. 13(2) of the Act. Again in the case of N. Sunkanna vs. State of Andhra Pradesh, (2006) 1 Supreme Court Cases 713, the Apex Court of the Country while dealing with the same issue has held that unless there is proof of demand of illegal gratification, proof of acceptance will not follow. In another binding precedent laid down by the Supreme Court in the case of Banarsi Dass vs. State of Haryana, (2010) 4 Supreme Court Cases 450, it has been held that it is a settled canon of criminal jurisprudence that conviction of the accused cannot be founded on the basis of an inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of chain of events is established pointing towards the guilt of accused. Prosecution has to lead cogent evidence in that regard so far as it satisfies the essentials of a complete chain duly supported by CRA No.31/2007 Page 13 of 17 appropriate evidence. It has been further held that the High Court erred in drawing inference of demand and receipt of illegal gratification from the fact that money was recovered from the accused.

14) The prosecution evidence regarding the demand and acceptance of the bribe money by the accused/appellant has to be appreciated in arriving at the conclusion whether or not the accused/appellant is guilty. These ingredients have to be established and proved by the substantive evidence on record. The complaint and the FIR are not substantive pieces of evidence. These can be used merely for contradicting or corroborating the witness. The complainant has wriggled out of his version. The evidence of the shadow witness as has already been stated herein-before does not inspire confidence in the eyes of law and to cap it all the complainant has stated in his statement that he did not know the accused prior to the occurrence. This statement of the complainant has been corroborated by the shadow witness inasmuch as he has stated that the complainant did not divulge the identity of the accused before the officer in his presence at the time of lodging the report and he, the complainant, told the officer that someone demanded bribe from him. This evidence of the complainant and the shadow witness has inverted and reversed the basic structure of the prosecution. They have turned the prosecution case upside down. These material aspects of the case have escaped the scrutiny of the trial Judge, who has proceeded to convict the accused on the assumption that the factum of demand and acceptance of the bribe money incorporated in the report lodged with the CBI stands proved but with which and what amount of evidence is a mystery that has not been unraveled, particularly when the accused/appellant was neither known to the complainant prior to the commission of the crime nor did he disclose his identity before the shadow witness.

CRA No.31/2007 Page 14 of 17

15) A Three Judges Bench of the Supreme Court in B. Jayaraj vs. State of Andhra Pradesh, (2014) 13 Supreme Court Cases 55 has laid down the following enunciation of law:

"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.

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 LW9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW1 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 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 CRA No.31/2007 Page 15 of 17 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."

16) The judgments of the law cited above applying to the instant case on all the fours. Risking repetition it is stated that the complainant has knocked the bottom out of the prosecution case. The shadow witness has not stated that he heard the conversation between the complainant and the appellant or that it was on the demand of the appellant that the complainant put the money into his pocket. There is nothing to state that the accused/appellant in a conscious endeavor accepted the bribe money from the complainant. The other witnesses examined by the prosecution have also not heard what transpired between the complainant and the appellant. Judicial process cannot be based on surmises and conjectures but on well reasoned out foundations of law the prosecution had to prove it beyond any doubt that the accused/appellant demanded the bribe money. In addition, the prosecution had to prove the ingredients of the offence with which the accused has been charged. The evidence on record does not perse form the foundation of the conclusion that such demand had in fact been made by the appellant.

CRA No.31/2007 Page 16 of 17

17) Viewed in the above context and on an overall appreciation of the evidence on record, the prosecution has failed to prove the charge leveled against the appellant beyond any reasonable doubt. The charge against the appellant, therefore, fails. The trial Court has failed to analyze the factual and legal aspects involved in the case in the right perspective as a consequence of which the determination made is not sustainable. The impugned judgment of conviction of the appellant recorded by the trial Court is not based on any credible evidence and is bad in law. Therefore, the same is set aside and the appeal is allowed as a corollary to which the appellant/accused is acquitted of the charges leveled against him and is released from the bail bonds.

(M. K. Hanjura) Judge Jammu

09. 01.2018 Surinder This judgment is pronounced by me in terms of Rule 138(3) of the Jammu and Kashmir High Court Rules, 1999.

(Sanjeev Kumar) Judge Jammu 09.01.2018 CRA No.31/2007 Page 17 of 17

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