Chattisgarh High Court
State Of Chhattisgarh vs Tobius Xaxa on 16 February, 2026
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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2026:CGHC:8242
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Reserved on : 28-01-2026
Delivered on : 16-02-2026
ACQA No. 260 of 2019
State of Chhattisgarh Through The Police Station- Eow / Acb, Bilaspur,
Chhattisgarh., District : Bilaspur, Chhattisgarh
... Appellant/State
versus
Tobius Xaxa S/o Shri V. Xaxa Aged About 38 Years R/o Village- Mahapalli, Police
Station- Chakradhar Nagar, District- Raigarh, Chhattisgarh. Post- Police
Inspector, Police Station- Dhourpur, District- Surguja, Chhattisgarh., District :
Surguja (Ambikapur), Chhattisgarh
Respondents.
For appellant/State. : Mr. Sanjay Pandey,Dy. Govt. Advocate with Mr. Ashutosh Shukla, Panel Lawyer.
For Respondent(s) : Ms. Vaishali Jeswani, Advocate appears on behalf of Mr. Sangeet Kumar Kushwaha, Advocate (Hon'ble Mr. Justice Narendra Kumar Vyas) CAV Order
1. The State has preferred this Acquittal Appeal under Section 372 of the Code of Criminal Procedure against the judgment of acquittal dated 30-6-2018 passed by the learned Special Judge under Prevention of Corruption Act, Ambikapur, District Surguja (CG) in Special Criminal Case No. 3 of 2014 whereby the accused has been 2 acquitted from offence punishable under Sections 7 and 13 (1)(D) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short, "The Act, 1988").
2. The case of the prosecution, in brief, is that on 3-5-2011 the complainant Chandrajit Yadav made a complaint (Ex. P/4) against the respondent to the Dy. Superintendent of Police, Anti Corruption Bureau, Bilaspur, alleging that a dispute arose between his sons namely Ayodhya Yadav and Jay Kishan Yadav who is resident of village Damakudkuda on 23-4-2011 which resulted into physical altercation. Jaykishan filed a report at Dhaurpur Police Station against Ayodhya Yadav and his friend namely Suresh @ Deriha. Accordingly, he met Police Station In-charge on 24-4-2011 at Thana Dhaurpur, then he after taking the names of his son and friend told him that he will close the case. Accordingly, he sent his son and his friend to the Police Station, but the accused has assaulted them by his constable and when he requested then he demanded Rs. 50,000/- otherwise, charges will be framed against him. The complainant immediately given Rs. 5,000/- to him, but he against demanded for Rs. 50,000/- and assured him that he will make small case against them otherwise, serious charges will be framed against them. The complainant requested the appellant that it is not possible for him to give such a huge amount immediately, then he asked him to arrange within 1 or 2 days. The complainant came to the accused on 26-4-2011 and given Rs. 10,000/- to him then accused told him that he is reducing Rs. 5,000/- from the amount of Rs. 50,000/- accordingly, the accused told him to bring remaining Rs. 30,000/- 3 within one or two days. The accused after putting signature of his son in some papers asked the complainant to take away his son. The complainant has recorded the negotiation between the accused and the complainant through mobile phone of his son Ayodhya. Since the complainant is not inclined to give Rs. 30,000/- to the accused, he contacted the Anti Corruption Bureau then the Dy. Superintendent of Police advised him to talk to the accused and he has recorded the negotiation which took place on 26-4-2011 as well as on 27-4-2011 and also prepared CD of the same.
3. On the basis of complaint made by the complainant, information for cognizable offence under Section 154 was registered against the accused for commission of offence under Section 7 of The Act, 1988 on 3-5-2011. Thereafter, proceeding for catching the accused red handed was initiated and a trap team was constituted. The complainant was given currency notes containing phenolphthalein powder and as per the direction given by the trap team on 04-05- 2011, the said currency was given to the respondent/accused by the complainant as bribe amount, thereafter the trap team reached at the place of occurrence and hands of the respondent were washed out by sodium carbonate and the colour of the water turned to pink colour and accordingly the respondent/accused was caught red handed by the Anti Corruption Bureau.
4. During investigation, permission was obtained by the Anti Corruption Bureau for initiation of proceeding as provided under Section 19 of the Act, 1988 by the competent authority i.e. Ministry of Home on 08- 4 05-2014 which has granted sanction to prosecute the accused. After usual investigation, charge sheet for commission of offence under Section 7 and 13((1)(D) of read with Section 13(2) of The Act, 1988 was filed against the respondent/accused before the Special Judge, Prevention of Corruption Act, 1988.
5. In order to bring home the guilt of accused/respondent the prosecution has examined as many as 14 witnesses namely- G.S,. Minj, Inspector (PW/1), Narayan Nimuje Superintending Engineer, PMGSY, Bilaspur (PW/2), Chandrajeet Yadav (PW/3), S.P. Korosiya, Dy. Superintendent of Police (PW/4), R.D. Sahu, SDO Forest, Biolaspur (PW/5), Naveen Kumar Shrivastava, Patwari (PW/6), Bhuneshwar Rao Shinde, Peon (PW/7), Subhas Yadav, nephew of complainant (PW/8), Sushil Kumar Soni, Assistant Grade II (PW/9), Ayodhya Prasad s/o complainant (PW/10), Vedram Sinha, Constable (PW/11), Smt. Kiran Gupta, Inspector (PW/12), O.P. Pal, Additional Transport Commissioner (PW/13), Adiya Heeradhar, Dy. Superintendent of Police (the then Inspector( (PW/14) and Ramakant Sharma, Dy. Superintendent of Police (the then Inspector) (PW/15) and exhibited documents ie., FIR (Ex.P/1), receipt memo (Ex.P/1-A), FIR (Ex.P/2), Carbon copy of FIR (Ex.P/2-A), information regarding crime (Ex.P/3), complaint of complainant (Ex.P/4), statement of inspector Ramakant Sharma (Ex.P4-A), Seizure memo (Ex.P/5), Jama Talashi Panchnama (Ex.P/6), seizure memo (Ex.P/7), Panchnama of tape recorder (Ex.P/8), primary enquiry panchnama (ExP/9), proceedings adjourned panchnama (Ex.P/10), Jaama Talasi Panchnama (Ex.P/11), Nazari Naksha (Panchnama) 5 Ex.P/12), seizure memo (Ex.P/13 to 16), proceedings Panchanama (Ex.P/17), transcription panchnama (.Ex.P/18 to 20), panchnama of arrest (Ex.P/21), letter regarding preparation of map by Patwari (Ex.P/22), and letter of protocol (.Ex.P/22), prosecution sanction order (Ex.P/22), covering memo (Ex.P/23), statement of Ayodhya Prasad Yadav (Ex.P/24), list of items (Ex.P/25), receipt of seized articles sent to FSL (Ex.P/26), letter of SP, ACB Raipur (Ex.P/26), letter of Inspector, ACB, Bilaspur (Ex.P/27), information letter (Ex.P/28), appointment and training programme (Ex.P/28-A), letter of Dy. Superintendent of Police, ACB, Bilaspur, Test report (Ex.P/-30 & 30-A) and FSL report (Ex.P/30-B).
6. Statement of accused/respondent has been recorded under Section 313 Cr.P.C., in which he denied the allegations leveled against him and pleaded innocence and false implication. In order to prove his case, the respondent examined the Jagmohan Tirkey Constable No.971 (DW/1), Pramod Singh, Reporter (DW/2) and Vibhor Rastago, Nodal Officer (DW/3) and exhibited documents ie., statement of constable Ved Ram Sinha (Ex.D/1), arrest memo (Ex.D/1 & D/2), letter of Dy.SP ACB, Bilapsur (Ex.D/2), statement of R.D. Sahu, SDO, Forest, Bilaspur (Ex.D/2. Test report (Ex.D/3), Jamanatnama (Ex.D/5), details of case diary (Ed.D/6) and certificate under Section 65-B of the Indian Evidence Act (Ex.D/7), record of customer profile (Ex.D/8), photo copy of application of Biram Bai (Ex.D/9), copy of voter ID (Ex.D/10).
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7. Learned Special Judge after appreciating the evidence and material available on record, vide its judgment dated 30-6-2018 has held that the prosecution failed to prove case against accused/ respondents and thereby acquitted him for the offences for which he was charged.
8. Being aggrieved and dissatisfied with the aforesaid judgment, the State has filed this Acquittal Appeal. Learned counsel for the State would submit that the prosecution has proved the demand against the accused by examining the complainant who has stated in his evidence that the voice was recorded in his mobile phone by his son and the memory card was seized from him as per Ex. P/5, as such, even if the certificate under Section 65-B(4) of the Act of 1872 is not submitted by the prosecution and the same is not fatal for the prosecution case as by other circumstantial evidence demand has also been proved beyond reasonable doubt by the prosecution, therefore, essential ingredients for conviction has been proved by the prosecution beyond reasonable doubt. The learned trial Court has committed illegality in not considering the evidence and material on record on this aspect and passed the order in mechanical manner ignoring the vital evidence and material brought on record by the prosecution, therefore, this Court in exercising its power under Section 386 of Cr.P.C., can very well interfere in this acquittal appeal.
9. He would further submit that the learned trial Court has miserably failed to understand that the demand was proved by the prosecution 7 beyond reasonable doubt as the person before whom the money was given have proved by exhibiting the Panchnamas from Ex.P/18 to P/20 and examination of panch witnesses who have also deposed before the trial Court that they are the signatory of Panchnamas and one of the panch witness Vedram Sinha (PW/11) has heard the demand of money, as such, the finding of the trial Court in paragraph 97 of the judgment that demand has not been proved beyond reasonable doubt, suffers from perversity as by the circumstances also the demand made by the accused has been proved by the prosecution through the circumstantial evidence is illegal and against the law laid down by the constitutional Bench of Hon'ble Supreme Court in case of Neeraj Dutta v. State (NCT of Delhi) wherein the Hon'ble Supreme Court has held that the demand and acceptance can be proved through oral, documentary, or circumstantial evidence, even if the complainant turns hostile or is unavailable and conviction can be sustained by testimony of a reliable independent witness (panch witness) who overheard the demand, testimony of the complainant, Phenolphthalein test (hand-wash or pocket-wash test), unusual conduct of the accused. In the present case all such circumstantial evidence are available on record, still the trial Court erred in acquitting the accused and would pray for allowing the acquittal appeal.
10. Per contra, learned counsel for the respondent/accused would submit that regarding the alleged demand the documents Ex.P/18 to Ex. P/20 have not been proved in accordance with the law. To substantiate her submissions, she would refer to paragraphs 34, 35 8 and 36 of the judgment of Hon'ble Supreme Court in the case of Rahil vs. State (NCT of Delhi), reported in 2025 SCC Online SC 1481, She would further submit that the finding recorded by the learned trial Court that no demand has been proved, does not suffer from perversity or illegality and would submit that for convicting the accused under Prevention of Corruption Act, prosecution has to prove that there was illegal demand of gratification, then only the accused can be convicted. She would further submit that even if the accused was caught red handed by the trap team, still it cannot be held that there was demand and the accused can be prosecuted. To substantiate her submissions, she would refer to the judgment of Hon'ble Supreme Court in the case of Neeraj Dutta vs. State (NCT of Delhi), reported in (2023) 18 SCC 251 wherein the Hon'ble Supreme Court has held that unless and until the demand is proved, offence under Prevention of Corruption Act is not maintainable. She would further submit that the view taken by the learned trial Court is not based on perversity or illegality and in view of well settled position of law that unless and until there is a cogent apparent mistake while acquitting the accused, then only this Court can interfere in the order of acquittal. Thus, she would pray for dismissal of the appeal. To substantiate her submission, she has referred to the judgments of Neeraj Dutta vs. State (NCT of Delhi) reported in 2023 (4) SCC 731, Rahil vs. State (NCT of Delhi) reported in 2025 SCC Online SC 1481, Madan Lal vs. State of Rajasthan reported in 2025 (4) SCC 624, Neeraj Dutta vs. State (NCT of Delhi) reported in 2023 (18) SCC 251, Pradeep Kumar vs. State of 9 Chhattisgarh reported in 2023 (5) SCC 350.
11. I have heard learned counsel for the parties and perused the material available on record.
12. From the submissions made by both the parties, this Court has to examine whether the proof of demand which is sine qua non for the offences to be established under Sections 7 and 13 of The Act, 1988 has been proved by the prosecution or not.
13. Learned Trial Court at paragraph 59 of its judgment has recorded its finding that the prosecution has failed to prove demand as before lodging of the FIR, no inquiry has been conducted with regard to the allegations made in the complaint and correctness and genuineness of Compact Disc has not been inquired by the Investigating Officer Aditya Heeradhar (PW/14). The trial Court has also raised doubt over the version of the complainant by referring to Ex. P/15 & P/16 which are part of case diary of Crime No. 87/11 and according to which the complainant's son was already released on bail on 25-04- 2011, as such, there is doubt about bribe money paid on 26-04-2011. The trial Court has also observed that the complainant in paragraph 13 has admitted that his son was not sent to jail and his son (PW/10) has also not confirmed about payment of illegal demand to the accused.
14. To ascertain whether the finding recorded by the trial Court is perverse or not, it is expedient for this Court to first extract the findings recorded by the trial Court in paragraphs 52 to 54 and thereafter, analysis whether it suffers from perversity or illegality, the 10 findings are as under:
(a) the trial Court has recorded in paragraph 52 that the Investigating Officer (PW/14) has stated that with regard to demand of bribe which was recorded in the memory card and CD was prepared which was seized vide Ex. P/5 and the transliteration has been prepared in front of panch witnesses (Ex. P/18) with the assistance of accused which is in three pages and in all the pages he has put signature. The trial Court has also recorded its finding that with the help of complainant, he has prepared transliteration which is Ex. P/19 in two pages in which he has put his signature.
b) Similarly, with regard to discussion for demand and for calling the complainant in the evening hours, the transliteration was prepared vide Ex. P/20 in two pages in which he has put his signature. The trial Court while recording its finding has also observed that when the accused has assaulted his son causing seriousness to him, it is not possible to record the conversation through mobile phone.
c) It has also recorded its finding that the accused in paragraph 11 has accepted that in the mobile phone there is no memory card and there is no provision for downloading or voice recording, as such, when there is no option for recording then preparation of CD is not possible.
d) The trial Court recorded its finding that the CD has not been examined by any expert to prove that the voice belongs to the accused, as such, a serious doubt regarding demand has been raised. The trial Court recorded its finding that the Investigating 11 Officer has admitted in paragraph 24 that he has not heard the CD which proves that the CD has not been heard by the trap team.
e) The trial Court recorded its finding for acquitting the accused that the Dy. Superintendent of Police who has heard the CD has not been examined.
f) The trial Court has taken into consideration that from perusal of Ex. D/8, D/9 and D/10 which are the computer generated customer profile record, application form of Virambai and Copy of Adhar Card and recorded its finding that whether at the time of incident the mobile phone was active or not and accordingly it has held that demand has not been proved.
15. These findings are contrary to the evidence and law as the trial Court has created doubt over the authenticity of Compact Disc which has been prepared from the memory card of the complainant and seized by the prosecution (Ex. P/5) as the complainant (PW/3) in his evidence in paragraph 2 has clearly stated that whatever the discussion between Station In-charge and himself is recorded in the mobile phone by his son which he has taken to Anti Corruption Bureau for lodging the report and the CD and memory card were seized by the Anti Corruption Bureau as Ex. P/5. The said witness was extensively cross-examined and in the cross-examination he has denied that whatever talks taken place between him and the accused have not been recorded. The witness has also identified the accused and denied that the accused has never demanded money from him. He also denied that he has not seen that his son is 12 recording the voice. The trial Court while exhibiting Ex. P/18 to P/20 has stated that in the transliteration he has put his signature and the trial Court while recording the evidence of the complainant has made observation that the witness has stated about the contents of the evidence made in the Ex. P/18 to P/20 as the witness is illiterate.
16. Thus, from the evidence brought on record, it is quite vivid that memory card and Compact Disc were seized from the complainant itself vide Ex. P/5, therefore, finding recorded by the learned trial Court that due to non-examination of Dy. Superintendent of Police who has directed the Investigating Officer to investigate or in absence of any certificate with regard to the correctness and genuineness of compact disc which is a mandatory provision has not been followed goes against the prosecution, is misconceived and contrary to the judgment passed by the three judges Bench of Hon'ble Supreme Court in case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others reported in 2020 (7) SCC 1 wherein the Hon'ble Supreme Court has held that required certificate under Section 65B(4) of the Indian Evidence Act, 1872 (for short "the Act of 1872") is unnecessary if the original document itself is produced and this can be done by the owner of a laptop, computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned which the original information is first stored, is owned and or operated by him. The Hon'ble Supreme Court in paragraphs 32 to 35 has held as under:
"32. Coming back to Section 65-B of the Indian Evidence Act, 13 sub-section (1) needs to be analyzed. The sub-section begins with a non- obstante clause, and then goes on to mention information contained in an electronic record produced by a computer, which is, by a deeming fiction, then made a "document". This deeming fiction only takes effect if the further conditions mentioned in the Section are satisfied in relation to both the information and the computer in question; and if such conditions are met, the "document" shall then be admissible in any proceedings. The words "...without further proof or production of the original..." make it clear that once the deeming fiction is given effect by the fulfillment of the conditions mentioned in the Section, the "deemed document" now becomes admissible in evidence 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.
33. The non-obstante clause in sub-section (1) makes it clear that when it comes to information contained in an electronic record, admissibility and proof thereof must follow the drill of Section 65B, which is a special provision in this behalf - Sections 62 to 65 being irrelevant for this purpose. However, Section 65B(1) clearly differentiates between the "original"
document - which would be the original "electronic record"
contained in the "computer" in which the original information is first stored - and the computer output containing such information, which then may be treated as evidence of the contents of the "original" document. All this necessarily shows that Section 65B differentiates between the original information contained in the "computer" itself and copies made therefrom - the former being primary evidence, and the latter being secondary evidence.
34. Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where "the computer", as defined, happens to be a part of a "computer system" or "computer network" (as defined in the Information Technology Act, 2000) and it becomes impossible to physically bring such network or system to the Court, then the only means of proving information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). This being the case, it is necessary to clarify what is contained in the last sentence in paragraph 24 of Anvar P.V. (supra) which reads as "...if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act...". This may more appropriately be read without the words "under Section 62 of the Evidence Act,...". With this minor clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be 14 revisited.
35. In fact, in Vikram Singh and Anr. v. State of Punjab and Anr. (2017) 8 SCC 518, a three-Judge Bench of this Court followed the law in Anvar P.V. (supra), clearly stating that where primary evidence in electronic form has been produced, no certificate under Section 65B would be necessary. This was so stated as follows:
"25. The learned counsel contended that the tape- recorded conversation has been relied on without there being any certificate under Section 65-B of the Evidence Act, 1872. It was contended that audio tapes are recorded on magnetic media, the same could be established through a certificate under Section 65-B and in the absence of the certificate, the document which constitutes electronic record, cannot be deemed to be a valid evidence and has to be ignored from consideration. Reliance has been placed by the learned counsel on the judgment of this Court in Anvar P.V. v. P.K. Basheer. The conversation on the landline phone of the complainant situate in a shop was recorded by the complainant. The same cassette containing conversation by which ransom call was made on the landline phone was handed over by the complainant in original to the police. This Court in its judgment dated 25-1-2010 has referred to the aforesaid fact and has noted the said fact to the following effect:
"5. The cassette on which the conversations had been recorded on the landline was handed over by Ravi Verma to SI Jiwan Kumar and on a replay of the tape, the conversation was clearly audible and was heard by the police."
26. The tape-recorded conversation was not secondary evidence which required certificate under Section 65-B, since it was the original cassette by which ransom call was tape-recorded, there cannot be any dispute that for admission of secondary evidence of electronic record a certificate as contemplated by Section 65-B is a mandatory condition."
17. Thus, it is quite vivid that the prosecution is able to prove the demand by examining the complainant and Compact Disc and memory card. In the present case there are circumstantial evidence also available i.e. testimony of a reliable independent witness (panch witness) who overheard the demand, testimony of the complainant, Phenolphthalein test (hand-wash or pocket-wash test) and unusual 15 conduct of the accused. The panch witness Vedram Sinha (PW/11) has stated that after reaching house of the accused, the complainant has called the accused, then the accused came out from the house then the complainant has told the accused that he has brought the money which he has told and then he has given the bribe money to the accused. Thereafter, the complainant gave him hint and then the witness has caught hand, thereafter, Inspector Heeradhar and R.K. Sharma have caught hold the accused and other member of the trap team also reached there. The witness has also told that when he caught hold the accused, then he had thrown the money in front of Baramda (courtyard), then Inspector Heeradhar asked him to complete the Phenolphthalein test and he completed the proceedings and when he has washed the hand of the accused by sodium carbonate solution, it has become pink which has been kept in clean glass bottle. He has also stated that the other panch witness count the bribe money seized from the courtyard and number was tallied and it was found that the notes are the same. He has also dipped the notes in sodium Carbonate solution and the colour of the water become pink. The witness was cross-examined, but nothing was brought on record to dilute the evidence with regard to hearing of the conversation between the complainant and the accused. On the contrary, the witness has stated in paragraph 21 that he was having 10 steps distance from the accused and denied that he was 20 meters away from the house of the accused and also denied that the complainant has intimated him after throwing the bribe money and also denied that the complainant after touching bribe money in 16 the hands of accused has thrown the money in the field and also denied that he has not seen that the accused has kept the money.
18. Narayan Nimje (PW/2) has stated in his examination-in-chief that the complainant after giving the bribe notes to the accused he came out from the house and hinted them, then along with other members of trap team, they reached the house of the accused and caught hold him. The accused seeing the members of the trap team had thrown the money in the courtyard. This witness was extensively cross- examined but nothing was brought on record to dilute this portion of the evidence. On the contrary, in the cross-examination he has supported the Phenolphthalein test. The witness in his cross- examination in paragraph 26 has denied that he has not seen the complainant entering into the house of the accused, but admitted that since he was sending to the Police Station gate, therefore, he is not aware about the discussion or transaction between the complainant and the accused. In paragraph 27 he has stated that he has seen the money throwing in the courtyard of the accused and also admitted that when they have entered in the house of the accused, he has not seen any bribe money with the accused.
19. The panch witness R.D. Sahu (PW/5) has stated in his examination-
in-chief that he was sitting in the rest house with DSP Karosiya and after sometime when Mr. Karosiya moved from there, he followed them and when he reached the accused house then he has seen that the Police Station In-charge has caught hold the accused in the courtyard and his waist was caught hold by Vedram Sinha (PW/11) 17 Constable and one hand was kept by Aditya Heeradhar, then Vedram Sinha told him that the complainant has given money to the accused which he has thrown in the courtyard and S.P. Karosiya has told him to count and tally the numbers of the notes and denied that from the place where he was sitting, he is unable to see the house of the accused, but admitted what proceedings are going on, has not been seen by him.
20. From the above stated evidence placed on record by the prosecution, it is quite vivid that the finding recorded by the learned trial Court in paragraphs 62 to 68 with regard to proving of the demand by panch witnesses has not been proved, is contrary to the evidence. The witnesses as detailed above by this Court, particularly Vedram Sinha (PW/11) who was available at the place of occurrence has categorically stated about the payment of bribe money to the accused by the complainant. Similarly, for disbelieving the statement of Narayan Nimje (PW/2) the finding of the trial Court in paragraph 62 has taken into consideration the voice record and its transliteration of the complainant and the accused which is not at all relevant to assessed whether the panch witnesses have heard the demand or payment of bribe money. In fact that witness came subsequently into the place of occurrence, as such, he has rightly taken a stand that he cannot hear the talks at the place of occurrence.
21. Again the trial Court while disbelieving the statement of R.D. Sahu (PW/5) has drawn undue inference by considering the evidence that 18 he has not seen the negotiation between the complainant and the accused. In fact, there was no such evidence brought on record by the prosecution to this effect. The panch witness has given his evidence with regard to the bribe notes seized from the place of occurrence only. Thereafter, the learned trial Court in paragraph 70 has recorded its finding that neither the complainant nor other witnesses have given the information with regard to mobile numbers and there was no option of recording in the mobile which has been affirmed by the complainant witness, therefore, it has raised doubt over the incident about demand of bribe money by the accused. This reasoning given by the trial Court is unsustainable as the memory card and Compact Disc have been seized by the prosecution and though the son of the complainant, Ayodhya Prasad (PW/10) was turned hostile by the prosecution still he has supported the case of the prosecution as this witness has admitted in the cross- examination that in the mobile kept by his father there is no memory card or downloading facilities, but the trial Court failed to consider that the evidence of the complainant (PW/3) who has stated that the voice of negotiation between the complainant and the accused has been recorded in the mobile by his son which he has submitted before the Anti Corruption Bureau Office Bilaspur. The trial Court unnecessarily struggled to record a finding that the voice recording is dubious whereas there is clinching evidence brought on record by the prosecution regarding demand made by the accused which has been recorded in the mobile phone by the son of the complainant. 19
22. The trial Court though recorded its finding in paragraph 79 that the incident has been seen by panch witness Vedram Sinha (PW/11) and complainant (PW/3) except that no other witness has seen the incident taken place in the house of the accused, still erred in recording its finding that no demand has been proved by the prosecution.
23. The trial Court in paragraph 92 has also recorded its finding that no expert has examined the CD and cassettes to prove that the voice belongs to the accused, therefore, it is a weak evidence and cannot be relied upon. This finding is illegal as there is no challenge or denial about the voice and in absence of any denial a conversation recorded in a CD to be admissible, if three contingencies are available i.e. (1) the conversation must be relevant, (2) the voice must be identified, and (3) the accuracy of the recording must be proved to eliminate possibilities of tampering. The accused has not denied or raised any objection as in question Nos. 43, 108, 115, 116 and 117 while examining under Section 313 of Cr.P.C., a specific question was raised with regard to audio recording and seizure of two compact discs, he has simply denied the same, but has not denied his voice. As such, the tape record conversation is admissible as held by the Hon'ble Supreme Court in case of R. M. Malkani vs State Of Maharashtra reported in 1973 (1) SCC 471, wherein the Hon'ble Supreme Court in paragraph 23 has held as under:
"23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there 20 is identification of the voice'; and. thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act. The conversation between Dr. Motwani and the appellant in the present case is relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about any portion of the conversation being erased or mutilated. The appellant was given full opportunity to test the genuineness of the tape recorded Conversation. The tape recorded conversation is admissible in evidence."
24. Thus, the learned trial Court has committed illegality in recording its finding that the prosecution is unable to prove the demand of bribe beyond reasonable doubt or cogent evidence. The trial Court while recording such finding has ignored the vital evidence as discussed above and also ignored the law laid down by the three judges Bench of the Hon'ble Supreme Court in case of Neeraj Dutta vs. State (Government of NCT of Delhi) reported in 2023 (4) SCC 731 wherein the Hon'ble Supreme has summarized the principle in paragraphs 88 to 88.8 as under:
"88. What emerges from the aforesaid discussion is summarised as under:
88.1 (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. 88.2 (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3 (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4 (d) In order to prove the fact in issue, namely, the demand 21 and acceptance of Criminal Appeal No.1669 of 2009 illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence.
Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is Criminal Appeal No.1669 of 2009 a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act. 88.5 (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
88.6 (f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7 (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to 22 raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
88.8 (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature."
25. The Hon'ble Supreme Court in case of Neeraj Dutta vs. State (Government of NCT of Delhi) reported in 2023 (18) SCC 251 again held that demand and acceptance of illegal gratification can be proved by circumstantial evidence also. The Hon'ble Supreme in paragraphs 21 and 22 has held as under:
"20. In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence.
21. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether 23 there is any circumstantial evidence to prove the demand."
26. From the above discussion and considering the fact that the prosecution has not only proved the demand and acceptance from direct evidence, but also from circumstantial evidence. The learned trial Court has ignored the vital evidence of complainant, production of CD and memory card by the complainant, wrongly applying the provisions of Section 65-B(4) of the Act of 1872, committed illegality in applying the law, recorded patent perversity about ignoring the proof of demand by one of the panch witnesses has proved the demand. There is no defect in phenolphthalein test conducted by the prosecution, as such, no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record, therefore, the Court can very well interfere in the findings of the trial Court acquitting the accused by reversing the findings for conviction of the accused. Thus, submission made by the learned counsel for the appellant that if two views can be taken then view which is more favourable to the accused should be considered by the Court and should not interfere in the finding of the acquittal deserves to be rejected, and accordingly it is rejected.
27. The Hon'ble Supreme Court in case of Babu Sahebagouda Rudragoudar and others v. State of Karnataka reported in 2024 (8) SCC 149 has held in which circumstances the findings can be reversed, in paragraphs 41 and 42 has held as under:
"41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of 24 acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
41.1 That the judgment of acquittal suffers from patent perversity;
41.2 That the same is based on a misreading/omission to consider material evidence on record;
41.3 That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
42. The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court."
28. Thus, this Court in exercise of power conferred under Section 386 of Cr.P.C. (Section 427 in the Bharatiya Nagarik Suraksha Sanhita (BNSS) can very well interfere in the findings recorded by the trial Court and can reverse such findings by convicting the accused for the commission of offence under Section 7, 13(1)(d) and 13(2) of the Act, 1988.
29. Therefore, as per Section 13(2) of the Act, 1988 as stood on the date of incident prior to its amendment on 12.01.2014, the public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than 1 year, but which may extend to 7 years and shall also be liable to fine. Accordingly, looking to the period of incident, I am of the view that the respondent deserves to undergo minimum sentence of 1 year rigorous imprisonment with fine amount of Rs. 25,000/- after getting remission for the period he remained in jail from 05-05-2011 to 18- 07-2011. The appellant shall surrender before the trial Court within three months to serve out the remaining part of the jail sentence. 25
Ordered accordingly.
30. Consequently, the acquittal appeal is allowed and the judgment of acquittal dated 30-6-2018 passed by the learned Special Judge under Prevention of Corruption Act, Ambikapur, District Surguja (CG) is set aside.
Sd/-
(Narendra Kumar Vyas)
Judge
Raju
Digitally signed by
RAVVA
RAVVA SATYANARAYANA
SATYANARAYANA RAJU
RAJU
Date: 2026.02.16
14:29:07 +0530