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11. PW-1 thereafter went outside to give the signal and the trap team members arrived at the spot. They caught hold of the Respondent‟s right hand after disclosing their identity and enquired about the transaction. They were informed that the money was kept in top table drawer. The GC notes were recovered by PW-1.

12. It has come in the evidence of Mr. V.K. Verma (DW-2) that he was present when PW-5 and PW-1 had entered in the office of the Respondent. He stated that PW-5 introduced PW-1 as his friend and stated that "he was a sanitary contractor and that some work be given to him." Thereupon, PW-5 took out Rs. 2,500 and told the Respondent that "Wo Thekadar Mila Nahi Hai, Ye Uske Paise Hai, Aap Use De Dena". Thereafter DW-2 left for his office which was adjacent to that room. He stated that after 3-4 minutes he heard some noises and came to the office of the Respondent. He found that six or seven officials of the CBI were there and they were playing a pocket tape recorder kept on the table. Then those officials said to the Respondent that "he had taken bribe and that they would arrest him." In the meanwhile the other officers from the RSBCC gathered there and protested stating that "this money was given in our presence for the contractor and that this was not the bribe money."

The tape recorder

15. What is significant is that PW-1 stated that CBI had handed over a micro tape recorder to PW-5 while leaving the office of CBI prior to the raid to keep in this pocket and to tape the conversation which might take place in the room at the time of raid. It must be mentioned that the tape recorder was played after the CBI entered the room.

These statements were made in the PW-1‟s cross-examination by learned counsel for the defence. Yet there was no re-examination of this witness by the CBI on the above aspect.

16. As regards the tape recorder, DW-2 also made a pointed reference to it in his deposition. He stated that 6-7 officials from CBI were there and they were "playing a pocket tape recorder kept on the table."He was not cross-examined on this aspect.

17. The stand of the Respondent is that the non-production of the tape recorder by the CBI should lead to an adverse inference against the prosecution that if the tape recorder had been produced it would have borne out the actual conversation that took place between PW-5 and the Respondent in his room.

18. Mr. Rajiv Kumar Chandha (PW-7) who took over the investigation from PW-3 was asked about the tape recording which he brushed aside stating "depends entirely on the circumstances as to when advance technology like micro cassette tape recorder are used by us during the investigation."

No acceptance of bribe by the Respondent

19. An analysis of the above evidence does lead to the conclusion that the Respondent has been able to probablise his defence on a preponderance of probabilities that the money received by him was not a bribe. The facts in the present case are very close to the facts in M. Abbas v. State of Kerala (2001) 10 SCC 103. In that case, the accused was alleged to have demanded a sum of Rs. 200 as bribe from the Complainant for refunding the earnest money and security deposit amounting to Rs. 500 which had been deposited at the time of submission of tender for maintenance. The accused was working as an Overseer with the municipality. A trap was organized and the accused was arrested after he had received the money and put it in his shirt pocket. The evidence showed that the Contractor had completed the maintenance work and had received payment. However, it was found that he had failed to remove the bump from the road which was later on got removed through another contractor. The defence of the accused was that the amount that was paid to him was towards balance amount to be paid to the other contractor to whom Rs. 50 had allegedly been paid earlier by the Respondent himself. The Supreme Court came to the conclusion that the accused had proved his defence on a preponderance of probabilities and it was for the prosecution to have led evidence, to show that money received by the accused was not the payment for the other contractor.