Jammu & Kashmir High Court

Union Territory Of J&K vs Ashu Jolly on 6 February, 2025

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                   AT JAMMU

Reserved on   07.11.2024
Pronounced on 06.02.2025

CrlA(AS) No. 2/2020


Union Territory of J&K                              .....Appellant(s)/Petitioner(s)
                        Through: Ms. Monika Kohli, Sr. AAG

                   Vs
Ashu Jolly                                                     ..... Respondent(s)
                        Through: Mr. Abhinav Sharma, Sr. Adv. with
                                 Mr. Abhirash Sharma, Advocate

Coram: HON‟BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                 JUDGMENT

1. This appeal is directed against the judgment of acquittal dated 02.03.2020

recorded by the court of learned Special Judge, Anti-Corruption, Jammu

(for short „the trial court‟) in case titled, „State vs. Ashu Jolly‟, whereby the

respondent has been acquitted of the charge for the commission of offences

under section 5(1) (d) read with Section 5(2) and 4-A of Prevention of

Corruption Act, 2006, registered with Police Station, Vigilance

Organization, (Now, Anti-Corruption Bureau), Jammu.

2. The judgment has been assailed by the appellant on the ground that despite

there being sufficient oral, documentary and scientific evidence in respect

of conscious demand and acceptance of bribe by the respondent and

subsequent recovery of the same from the respondent, the learned trial

court has acquitted the respondent by sheer wrong and mis-appreciation of

evidence.

3. Mrs. Monika Kohli, learned Senior AAG has submitted that the

prosecution had proved the demand, acceptance and recovery of bribe of

amount of ₹5,000 from the respondent, as such, the learned trial court could

not have acquitted the respondent and in fact, the judgment is perverse and

contrary to the evidence brought on record by the prosecution.

4. Per contra, Mr. Abhinav Sharma, learned senior counsel for the respondent

has vehemently argued that the opinion formed by the learned trial court,

while acquitting the respondent, cannot be termed as perverse, more

particularly, when the statement of the complainant is contradictory in

nature. He has further laid much stress that the statement of shadow

witness, namely, Sushma Rani reveals that she allegedly made the pre-

fixed signal to one Jagdev Singh, who was never associated with

investigation and was not even produced as a witness during trial. Mr.

Sharma has urged that the respondent was not a competent person/authority

to clear the synopsis of the complainant and the synopsis was to be cleared

by the panel duly constituted by the University, of which the respondent

was never a member. Next, he contended that there was absolutely no

evidence on record in respect of demand of bribe before registration of FIR

and laying of trap and in view of this legal infirmity, the respondent could

not have been convicted and as such, learned trial court after due

appreciation of evidence has rightly acquitted the respondent.

Prosecution case:

5. Briefly stated the case projected by the prosecution in the chargesheet is

that on 09.12.2016 a written complaint (Ext-P-1) was submitted by the

complainant i.e. PW-1 stating therein that she was the student at Indira

Gandhi National Open University (IGNOU) under Roll No. 12547190 and

had submitted her synopsis four times, but each time her synopsis was

rejected. Her previous guide was Mohd. Zubair Kales but she had

subsequently changed him. The respondent, Assistant Professor in

Government College of Education, Canal Road Jammu was her Guide after

Mohd. Zubair Kales. It was further stated that the respondent had

demanded an amount of ₹10,000/- as bribe for clearing her synopsis and

under the compelling circumstances, she was going to hand over the first

instalment to her on that day only. On receipt of this information, FIR

bearing No. 25 of 2016 was registered on 09.12.2016 at 1215 hours for

commission of offences under sections 5(1)(d) read with section 5(2) and

4-A of the Prevention of Corruption Act, 2006. Inspector, Naresh Kumar

was deputed as Investigating Officer by Senior Superintendent of Police

(SSP) of the Vigilance Organization, Jammu on the same day itself. A trap

team was constituted by the SSP, Vigilance Organization, headed by PW

H. L. Pandita, Dy.S.P of Vigilance Organization Jammu and comprising of

Sh. Zaffer Ahmed Inspector, Vikram Sharma, Inspector Constable Vikas

Dutta and Head Constable Jagdev Singh. Besides above- mentioned

officers, Sanjay Bhat was assigned the duty of smearing of currency notes,

produced by the complainant with phenolphthalein powder. However, he

was ordered to disassociate from the team. PWs Sushma Rani AEE PDD

and Ajay Puri, AEE of PDD were associated as shadow and independent

witnesses respectively. Thereafter, pre-trap demonstration was conducted.

After the pre-trap proceedings, the trap team along with shadow and

independent witnesses went to the office of the respondent at Government

College of Education, Canal Road, Jammu. PW-1 (complainant) along with

PW-2 (shadow witness) as per instructions, proceeded towards the office of

the respondent. The independent witnesses took their respective positions

as per instructions imparted during pre-trap proceedings. After about 10 to

15 minutes, the shadow witness-Sushma Rani flashed a pre-fixed signal

(scratching her head with right hand) and on seeing the signal, the members

of trap team proceeded towards the spot. On reaching the spot, the

complainant and the shadow witness pointed towards the lady sitting in the

office and stated that she was the lady, who after demand, had accepted an

amount of ₹ 5,000/- as bribe from the complainant and after counting, she

had kept the same in the drawer of the office table placed in front of

her.The Trap Laying Officer introduced himself as well as other team

members to the respondent and asked her to cooperate during the

proceedings. Constable, Vikas Dutta brought the trap kit and the solution of

Sodium Carbonate. The shadow witness was asked to rinse her hands in the

Sodium Carbonate Solution and on doing so, the colour of the solution of

Sodium Carbonate did not change but when the respondent rinsed finger of

her right hand, the colour of the solution turned pink. Thereafter, the

solution was also preserved and sealed in a glass marked as „A‟. The same

procedure was followed again, and the shadow witness and the respondent

were asked to dip their left hand in the solution of Sodium Carbonate. This

time also the colour of the solution, when the shadow witness dipped her

hand did not change, but colour of the solution changed when the

respondent dipped her left hand. The solution was preserved and sealed in a

glass marked as „B‟. Thereafter, an amount of ₹5,000/- received as bribe by

the respondent was recovered from the office table placed in front of her.

The serial numbers were tallied with the serial numbers of the notes noted

during the pre-trap proceedings and the numbers of the currency notes

recovered from the table of the respondent tallied with the numbers of the

currency notes noted during pre-trap proceedings. After the conclusion of

the investigation, charge against the respondent for commission of offences

under section 5(1)(d) read with section 5(2) and 4-A of the Prevention of

Corruption Act, 2006 was established against the respondent.

6. The charge sheet was laid before the trial court 03.03.2018.The respondent

was charged for commission of offences under sections 5(1)(d) read with

section 5(2) and 4-A of the Prevention of Corruption Act, 2006 on

18.05.2018. As the respondent did not plead guilty, the trial court directed

the prosecution to lead evidence. The prosecution had cited as many as 16

witnesses, out of which 15 witnesses were examined. The respondent,

however, did not choose to lead any evidence. After hearing the parties, the

learned trial court acquitted the respondent.

Prosecution Evidence:

7. PW-1 complainant has stated that she had completed her M.Ed and had

submitted her synopsis four times, but each time, her synopsis were

rejected. Her earlier Guide Zubair Kales asked her to approach the

respondent. She was serving as Assistant Professor, Government College of

Education at that time. On the last days of November or during the initial

days of December, she went to the respondent and talked to her in respect

of her problem. The respondent demanded ₹5,000/- for clearing her

synopsis as bribe and further asked her that she would have to pay ₹

5000/- at the time of approval of the synopsis, as the same was required to

be stamped by the Assistant Professor and she was assured that her

synopsis would be cleared and the balance amount of ₹ 5,000/- was to be

paid after the approval. She, being against the corruption, submitted a

written report (Ext-P1) with the SSP Vigilance. She has deposed about the

pre-trap proceedings conducted by the team headed by PW Hira Lal

Pandita, Dy.SP. She produced ₹ 5,000/- comprising of two currency notes

of ₹2,000/- denomination and two notes each of ₹500/- denomination. She

deposed about the association of PW Sushma Rani as shadow witness, who

was instructed to remain with her and hear the conversation and to keep an

eye over the exchange of money between her and the respondent. She

proved the pre-trap memo (Ext-P-5). She left the spot at 1.30 PM. The

vehicles were parked at the distance short of the college. She and PW

Sushma Rani went inside the premises, whereas the other team members

took their respective positions. She entered the office of the respondent and

talked to her. On enquiry by the respondent regarding presence of PW

Sushma Rani, she replied that PW Sushma Rani was her relative. The

respondent, while handing over her synopsis, asked her as to whether she

had brought the money, whereupon she passed on the notes to the

respondent, which the respondent after counting put in the drawer of her

table. PW Sushma Rani went towards the door and flashed the pre-fixed

signal to the team members. The TLO along with other members

immediately came on spot. PW Sushma Rani narrated that the respondent

had demanded the bribe and accepted the tainted money from her and had

kept the same in the drawer of her table. Two lady Constables were

summoned, and trap kit was also brought by PW Vikas Dutta, who

prepared the Sodium Carbonate solution. She has further stated that both

right and left hands‟ washes of the respondent were taken one by one in the

solution of Sodium Carbonate and the colour of the solution turned pink.

They were seized on spot and marked as „A‟ and „B‟ respectively. PW

Sushma Rani recovered the bribe money from the drawer of the respondent

and serial numbers of currency notes were tallied with the numbers noted

down by the independent witnesses during pre-trap proceedings. The two

slips with the independent witnesses and bribe money were seized

separately vide seizure memos ExtP5-VI and ExtP5-VII respectively. She

also identified the currency notes and two bottles containing hands wash of

the respondent and seizure memo thereof (ExtP5/VIII). She also proved

seizure of the synopsis of 26 leaves (ExtP5/V). The seal used for affixing

the stamp was kept on supurdnama by PW Ajay Puri vide supurdnama

(ExtP5/III). The memo of post-trap proceedings was prepared and she

proved the same (ExtP5/1). During cross-examination, she stated that she

could not say as to why her synopsis was rejected four times. She was

aware of the fact that a Guide could neither accept nor reject the synopsis

and a panel was constituted for that purpose. Her previous guide was

Zubair Kales, and she had chosen him as guide out of the list of the guides

prepared by the IGNOU. She was forced to change her Guide as her

previous Guide had told her that he was going out of the State. The job of

the Guide was only to check synopsis and put a seal and signature

thereupon. She admitted that her previous Guide had never rejected her

synopsis but had only pointed out certain mistakes. She chose the accused

on the recommendation of her previous Guide. The role of the Guide is

only to help in preparing the synopsis. She further stated that the accused

had told her about the person, to whom the synopsis was to be handed over.

She never filed any application with IGNOU for changing her Guide. The

synopsis on the file was neither signed nor stamped by the respondent. She

handed over ₹ 5,000/- to the respondent without checking the same. She

further stated that the synopsis was lying on the table only, when the signal

was flashed to Vigilance people, and they entered. She flashed the signal

from the door only and did not go out of the room. She was accompanied

by PW Sushma Rani, and she accompanied her till door. She also did not

go outside the room. PW Sushma Rani had flashed the signal by scratching

her head. She without examining the synopsis as to whether they were

bearing the seal and signature of the respondent, handed over the bribe

amount and went towards the door of the room. PW Sushma was two steps

ahead of her. She did not pick up the synopsis which was lying on the table

as the Vigilance Officials had instructed her to flash the signal immediately

upon acceptance of the bribe. The respondent had told her about one

Jagdev or Jagjit, which she did not remember completely and had again

stated that the name was not disclosed but she (accused/respondent) had

asked her to give her phone call. She denied the suggestion that the

respondent did not demand any bribe, and her synopsis was not of requisite

standard and she herself requested the respondent to get her synopsis

cleared and put the bribe money into the drawer of the respondent on her

own.

8. PW Sushma Rani stated that she was posted as AEE Sub-Division Canal

EMR&E Wing, Directorate Office Jammu. On 09.12.2006, she was

directed to report in the office of SSP VOJ on special duty and PW Ajay

Puri, AEE was the other officer deputed along with her. Both of us reported

at the said office and Mr. H. L. Pandita, Dy.SP and complainant were

already there. SSP introduced us to them. The complainant produced ₹

5,000/- comprising of two currency notes each of ₹ 2,000/- and ₹ 500/-

denominations. PW H. L. Pandita gave us two papers and directed us to

note down the numbers of those currency notes separately, which was done

by her and Ajay Puri. We were directed to retain those papers with

themselves. TLO requisitioned the trap kit and phenolphthalein powder.

Constable Sanjay Bhat was directed to conduct the demonstration. She was

asked by the TLO to conduct personal search of the complainant, who was

allowed to retain mobile and ID Card. The other members of the team were

searched by Mr. Ajay Puri, who were also allowed to carry their mobile set

and Id Cards only. She kept the phenolphthalein smeared notes in the outer

pocket of the handbag of the complainant as per the directions of the TLO,

who directed the complainant not to shake hand with anybody and to pass

on those notes to the complainant or to any other person as directed by the

latter only, on demand as bribe. She was instructed by TLO to remain with

the complainant as shadow witness and to observe the transaction carefully

and to hear the conversation between the complainant and the respondent.

Thereafter, all the trap team members including the complainant left for the

Women College of Education, Canal Road by two vehicles of VOJ. The

vehicles were parked at a short distance from the gate of the college. She

along with the complainant proceeded to the office of the

respondent/accused. Respondent present in the court was sitting in her

office alone. Respondent enquired from the complainant about her who told

her that she was her relative. We sat down on the chair in front of the table

of the accused. The complainant asked accused about her synopsis to which

the respondent retorted as to whether complainant had with the money as

demanded. Upon this, the complainant took out ₹ 5,000/- from the outer

pocket of her bag which she had kept therein and handed over to the

respondent, which were counted by the respondent and then kept in the

drawer of her table. Thereafter, we stood up and walked towards the door

of the room and she passed on the signal as directed, to the member of the

trap team who was standing outside the room. Thereafter, all the team

members rushed in, and the respondent got frightened. The team members

gave their introduction and asked the accused to cooperate. Two lady

constables were also summoned on spot. She explained to the TLO that

accused had demanded and accepted the money. Trap kit was brought, and

a solution of the Sodium Carbonate was prepared in a glass tumbler. She

was asked to immerse her right hand and upon her doing so, the colour of

the solution did not change but the colour got changed to pink, when the

respondent dipped her right hand.The solution was preserved in a clear

glass bottle (Ext-A). She further stated that once again a fresh solution of

Sodium Carbonate was prepared and she was asked to dip her left hand

therein and upon doing so, the colour of the solution remained unchanged.

Thereafter, the respondent was asked to rinse her left hand in the same

solution and upon her doing so, the solution turned pink. The solution so

obtained was again preserved in a separate bottle (ExtB). Both the bottles

were seized by the TLO on spot. Thereafter, she was asked to check the

drawer of the table of the accused. She checked the drawer of the table of

the respondent and recovered the money paid by the complainant, which

was lying therein. She and PW Ajay Puri matched the numbers of those

notes with the numbers noted by us on separate slips, which were found to

be same. TLO seized those notes and the two slips on spot. She searched

the purse of the respondent on the directions of the TLO and the articles

recovered therefrom, were also seized which included mobile set, pen

drive, I card, official seal of the respondent and Rs. 82/- coins. Seal was

kept on the suburdnama of Sh. Ajay Puri after taking impression on a

paper. The file of M.Ed synopsis of the complainant was also recovered

from the accused and seized on spot by the TLO. The respondent was

arrested and her husband was informed on his cell phone, who also came

on spot. Principal of the college was also informed, who also came on spot

and no damage certificate was taken from her. Memo of post-trap

proceedings was prepared and signatures of the members of the team were

obtained thereupon. She had seen the bottles marked as Ext A and B, which

were the same. She also identified the bribe money-currency notes, which

were the same as per the serial numbers noted by her on the slip. She also

identified the paper slip (ExtP 2) prepared by her and bearing her signature.

She also identified the application (Ext P1) of the complainant. She read

the pre-trap memo and identified her signatures (Ext-P5). She also

identified her signatures on site plan (ExtP5/II), supurdnama of seal

(ExtP5/III), arrest memo (ExtP5/IV), memo of impressions of seal (Ext-

P1/2), seizure memo of synopsis of MEd (Ext-P5/V), seizure cum recovery

memo of currency notes (Ext-P5/VII), seizure memo of washes of both

hands (ExtP5/VIII) and memo of post trap proceedings ExtP5/I. She also

identified the seized synopsis comprising of 26 pages. During cross-

examination, she stated that they left for the spot at about 1.30 PM and

reached College within 15/20 minutes. One member of the team was

visible to her from the chair whereas she was seated inside the office of the

accused, however, he was not visible to the respondent, who was on the

other side of the table to her. The member standing in the veranda was a

Constable, whose name was perhaps Jagdev. She passed on the signal to

the said Constable. The double shutters of the door of office of the accused

opened inside the room. She was seated on the chair towards right side of

the accused. The position of Jagdev constable was not mentioned in the site

plan. The other members became visible only after she walked a few steps

towards the entrance. She did not remember whether she asked

complainant the reasons why her thesis was rejected earlier four times, but

it was mentioned in the application that earlier Guide was a different

fellow. She asked the complainant as to whether she was having any

hostility towards the accused, to which she replied in negative. The

respondent asked the complainant as to whether she had brought the money

but did not mention the bribe money specifically. She did not remember

whether the accused put her signatures or seal before or after accepting the

money, however, she shuffled the pages of synopsis before accepting the

money but did not ask any thing about the same before or after accepting

the money. The complainant did not walk up to the door of the room by

taking the synopsis with her. She had mentioned in the statement before

Police that the accused demanded the money. She was instructed to pass

the particular signal on demand and acceptance of bribe. However, the

complainant was not asked to do so. She passed the signal after walking

near and from the door. The complainant also walked up to the door along

with her, but she did not see her passing the particular signal to the trap

members. She did not feel it necessary to ask the complainant as to why her

synopsis was rejected four times earlier but now, she feels that she should

have asked that question also. The bribe was demanded for clearing the

synopsis and not for getting the same cleared.

9. PW Ajay Puri has stated on identical lines as that of PW Sushma Rani. He

stated that he and his colleague Sushma Rani asked some questions to the

complainant and after getting the answers, they were satisfied that the

complaint was genuine. The complainant produced ₹ 5,000 comprising of

two currency notes each of ₹ 2000/- and ₹ 500 denominations and on the

directions of Dy.SP, he and Sushma noted down the serial numbers of

those notes on separate paper slips, which were retained by them. PW

Sushma Rani was instructed to remain as near as possible to the

complainant and hear conversation between the complainant & the accused

and to watch their activities. The complainant was instructed to hand over

the tainted currency notes only on demand of bribe by the accused and

Sushma Rani was instructed to flash a particular signal on demand and

acceptance of bribe thereafter. He was searched by the TLO and later he

searched all the members of the team, who were allowed to retain mobile

sets and ID Card only. The complainant was searched by Sushma Rani.

The complainant was further instructed not to shake hand with anybody

including accused. The vehicles were parked on the main road outside the

gate of the college. The complainant and Sushma Rani proceeded inside

and he along with PW Pandita TLO stayed at the main gate. Two trap team

members also went inside, and one stood outside the room of the office of

the accused, whereas the other took position on one side. After about

fifteen minutes, he was signalled by PW Pandita, and we rushed inside. On

entering the office room, which was a big hall, accused was sitting on her

chair with the table in her front. Sushma Rani narrated that the accused had

demanded and accepted the tainted money, as bribe which she had kept in

the drawer of her table after counting. Thereafter, the TLO introduced

himself to the accused and introduced her with the other members of the

team.Trap kit was requisitioned, and a solution of sodium carbonate was

prepared in the glass tumbler. PW Sushma Rani was made to dip her right

hand‟s fingers therein and upon her dipping the fingers, the colour of

solution remained unchanged. Afterwards, accused was asked to rinse her

right hand‟s fingers in the same solution and upon her doing so, the colour

of the solution turned pink. That solution was sealed and marked as „A‟.

Fresh solution of Sodium Carbonate was prepared in another glass tumbler

and Shushma Rani was made to dip her left hand‟s fingers therein, but the

colour of solution remained unchanged. Thereafter, accused Prof. Jolly

rinsed her left hand‟s fingers in the solution, and it turned into pink. That

solution was also preserved in another bottle which was sealed and marked

as „B‟. Thereafter, on the direction of TLO, PW Sushma Rani searched the

drawer of the accused and recovered the bribe money. He and Sushma Rani

confirmed the serial numbers of those notes recorded by us on separate

slips, which matched. In the meanwhile, TLO called two lady constables,

who also arrived on spot. Sushma Rani conducted the search of the accused

on the directions of TLO and recovered a mobile phone, coins of ₹ 70-80 in

total, a pen drive and I-card. Principal of the college of the accused was

also called on spot. Different memos were prepared on spot with respect to

proceedings conducted on spot and the seal-a fingering used as stamp

during the proceedings was kept on his supurdrama. He produced the same

in the court. The synopsis was recovered from the accused and seized on

spot. Site plan was also prepared and the whole of the proceedings went on

smoothly. A post-trap memo was also prepared regarding the proceedings

conducted on spot, which was signed by all the team members as

witnesses. He identified the two bottles marked as „A‟ and „B‟ in the court,

carrying his signatures, though the colour had fainted. He was also showed

the seized currency notes and his slip which were the same. He identified

his signatures on the pre-trap memo (Ext p-5), post trap memo (Ext. P5/9),

siteplan (Ext. P-5/II), supurdnama (Ext. P5/III), arrest memo (Ext. P-5/IV),

impression of seal memo (Ext. P5 1/2) and seizure memo of file Mark -2,

seizure memo of two paper slips (Ext. P5/VI), memo of seizure and

recovery of tainted currency notes ((Ext. P5/VII ) and seizure memo of

hand washes of both hands of accused (Ext. P-5/VIII). During cross-

examination, he stated that he got the telephone call from the office of

Chief Engineer. He reached at the office of VOJ at about 12:30 PM. It took

about 30 to 40 minutes to complete the pre-trap proceedings. He went

through the complaint filed by the complainant. He did not remember the

exact words, but it was written in the complaint that synopsis of the

complainant was rejected earlier, and she had also changed her Guide. He

did not question the complainant as to why the synopsis was rejected four

times earlier by her Guide Mohd. Zubair. He also did not question the

complainant whether the accused had the authority to clear the synopsis.

Neither complainant nor independent witness was visible to him from the

place where he was standing. He did not check whether accused had

approved/cleared the synopsis of the complainant.

10. PW Inspector Vikram Sharma has stated that he was posted at VOJ (now

ACB), Jammu. On 9th of Dec., SSP VOJ constituted a trap team in FIR

25/2016 for laying the trap. Mr. H. L Pandita, DySP was the T.L.O and

other members were Inspector Hari Singh, Inspector Zafar Amin, Inspector

Mushtaq Ahmed, Const. Vikas Dutta, Const. Jagdev Singh, besides him.

Const. Sanjay Bhat was assigned the job of dusting and demonstration. He

reported at the office of SSP at about 12:25 PM. Complainant Sonia

Sharma, Mr. Ajay Puri AEE, Shushma Rani AEE both from PDD and other

team members were already there. TLO introduced all the trap team

members to complainant and the reasons for assembling. Both the AEEs

were informed that they would be the independent witnesses to the

proceedings. IO handed over the case file to TLO. Independent witnesses

were made to read over the complaint, who asked certain questions to the

complainant to ascertain the genuineness of the complaint. It was alleged

that the accused was demanding ₹5,000 for clearing her synopsis for M.Ed.

The complainant produced ₹5,000/- comprising of two notes each of Rs

2,000/- and Rs 500/- denominations, as it was alleged that ₹5,000/- were to

be paid as advance and the balance amount of ₹ 5,000/- was to be paid after

clearance of her synopsis. Both the independent witnesses noted down the

serial numbers of those notes on separate papers provided by TLO, which

they were allowed to retain with themselves. TLO requisitioned the trap kit

and phenolphthalein powder through Const. Sanjay Bhat. Const. Sanjay

Bhat smeared the notes produced by the complainant as bribe money, with

phenolphthalein powder and prepared a solution of Sodium Carbonate in a

glass tumbler. Mr. Ajay Puri AEE was made to rinse his right hand‟s

fingers in that solution, but the colour of the solution remained unchanged.

Thereafter, he was told to dry his hands and then touch the phenolphthalein

smeared notes and then rinse his fingers in the same solution again. Upon

doing so, the colour of the solution turned pink, the process was explained

to the members of the team and thereafter the solution was destroyed.

Thereafter, Sanjay Bhat was disassociated from the trap team. Thereafter

Sushma Rani AEE searched the complainant, who was allowed to retain

mobile set and I card only. On the directions of TLO, Sushma Rani put the

phenolphthalein smeared notes in the outer pocket of the purse of the

complainant, who was cautioned not to shake hands with anybody and to

handover those notes to complainant only on demand as bribe. Sushma

Rani AEE was named as shadow witness and was directed to remain with

the complainant and to watch the transaction carefully and try to overhear

the conversation between complainant and accused. PW Ajay Puri

conducted the search of other members of the trap team, who were allowed

to retain I cards, pens only besides mobile sets. A pre-trap memo was

prepared which was readover to all the members of trap team and their

signatures were obtained as witnesses thereto. At about 1.30 PM, we

proceeded from the office towards Govt. College of Education Canal Road

by two Govt. vehicles and reached there at about 1.45 PM. The vehicles

were parked at some distance from the gate of the college and complainant

along with shadow witness Sushma Rani walked to the office of accused

whereas the other team members took their positions outside. After about

10/15 minutes, the independent/shadow witness passed the pre-fixed signal

and all the team members rushed to the room of the accused and shadow

witness narrated that the accused, who was seated on her chair, had

demanded and accepted the bribe and had kept the bribe money in the

drawer of her table. TLO introduced himself and other members of the

team to the accused and asked her to cooperate with them. On being

questioned, the accused disclosed her name, designation and residential

address. During same time, two lady constables also reached there. On the

directions of the TLO, Constable Vikas Dutta brought the trap kit and

prepared a solution of Sodium Carbonate. Shadow witness Sushma Rani

was made to dip her right hand‟s fingers in that solution, but the colour of

that solution remained unchanged. Thereafter, accused lady was made to

dip/rinse her right hand‟s fingers in that solution which turned pink, and it

was preserved in a bottle marked as „A‟ and sealed on spot. A fresh

solution of Sodium Carbonate was prepared and the process was repeated

to obtain the left hand‟s wash of accused which also turned pink and it was

preserved in another bottle which was sealed on spot and marked as „B‟.

Both the bottles were seized on spot and the seizure memos were prepared.

On the directions of the TLO, shadow witness recovered the bribe money

from the drawer of the table of the accused, which were tallied with the

serial numbers noted by both the independent witnesses and were found to

be same. The bribe money and two slips containing the numbers on those

notes were also seized on spot and the seizure memo was signed by the

witnesses. Besides him, on the directions of TLO, PW Sushma Rani

conducted the search of the accused and some coins of ₹ 80-82/-, mobile,

official seal, pen drive, I card etc. were recovered which were seized on

spot. The seal used for sealing the bottles etc. were given to PW Ajay Puri

after taking its impression on a paper. On the directions of TLO, the

accused produced the synopsis of complainant comprising of about twenty-

seven pages, which was also seized on spot. During the proceedings,

Principal of the college also reached on spot. The accused was arrested on

spot and a memo of arrest was prepared and husband of accused was

informed telephonically, who also reached on spot. A memo of post-trap

proceedings was also prepared and was signed by him and others as

witnesses. After completion of the proceedings, the team returned at about

4:00 PM. He also identified the initial application (Ext. P1) submitted by

the complainant. On being shown, he also identified the order constituting

trap team (Ext. P6), pretrap memo (Ext. P5), post trap proceedings memo

(Ext.-P5/I), site plan (Ext-P5/II), memo of supurdnama of seal (Ext.-

P5/III), memo of arrest of accused (Ext-P/IV) seizure memo of synopsis

file (Ext. P5/V), seizure memo of two slips (Ext. P5/VI), seizure cum

recovery memo (Ext. P5/VII) and seizure memo of both hands wash of

accused (Ext P5/VIII). During cross-examination, he stated that he met the

complainant at the retiring room of SSP for the first time. Bribe was

neither demanded nor accepted in his presence. Independent witnesses

didn‟t question the complainant as to why her synopses were rejected four

times earlier, but she narrated that she had changed the Guide. PW Ajay

Puri was searched by the TLO, but the shadow witness was not searched by

anybody however, these facts are not mentioned in his statement recorded

under Section 161 Cr.PC. The purse of the complainant was not seized. He

was standing about 25 feet away from the office of the accused in the park.

None of the team members was standing in the veranda. The happenings

inside the room were not visible to him. TLO didn‟t obtain the signatures

of Principal or husband of the accused on the arrest memo. The shadow

witness flashed the pre-arranged signal to a member who was constable and

all the team members were having eye-contact with each other. That

constable was standing about twenty-five feet in front of the room, whereas

he was standing towards left side and that constable was almost in front of

the door. None of the witnesses was examined in his presence.

11. PW Inspector, Hari Singh stated that in December 2016, he was posted

with VOJ (now ACB).On 9th of December 2016, SSP VOJ constituted a

trap team and DySP was made the Trap Laying Officer, whereas he, Insp.

Zaffer, Insp. Mushtaq and Insp. Vikram Sharma and two constables were

nominated as members. The responsibility of dusting and pre-trap

demonstration was entrusted to Constable Sanjay Bhat. All the trap team

members assembled at the office of SSP and complainant and two

independent witnesses, namely, Sushma Rani and Ajay Puri, both AEEs,

PWD were already there. TLO introduced team to the complainant and the

independent witnesses, and they were further apprised of the purpose of

their assembling. Insp. Naresh Sharma IO handed over the CD file to the

TLO and all the witnesses read the complaint. Independent witnesses put

some questions to the complainant-Sonia to ascertain thegenuineness of her

complaint. The complainant produced ₹5,000/ comprising of two notes

each of ₹2,000/- and ₹500/- denominations. Both the independent witnesses

noted down the serial numbers on separate paper slips, which they retained

with themselves. Trap Kit and phenolphthalein powder were requisitioned

and the GC notes produced by the complainant were dusted with

phenolphthalein powder. He has deposed about the effects of handling

phenolphthalein smeared notes when washed afterwards with the solution

of Sodium Carbonate. Independent witness searched the complainant, who

was allowed to retain mobile- set and I-card only. The phenolphthalein

smeared notes were kept by the independent witness in the outer pocket of

the purse of the complainant, who was instructed not to touch those notes

and to hand over the same to the accused only on her specific demand as

bribe. Sushama Rani was named as shadow witness and was instructed to

remain with the complainant and observe the transaction and to hear the

conversation between the complainant and the accused and then to pass a

particular signal on acceptance of the bribe. PW Ajay Puri was named as

independent witness, and he searched all the members of the trap team

before they left to lay the trap after washing their hands properly. On the

directions of the TLO, complainant and shadow witness proceeded to the

office of the accused and other members took their respective positions

outside. After 10-15 minutes, shadow witness flashed the prefixed signal

whereafter all the team members rushed into the office of the accused.

Complainant and shadow witness pointed towards accused and told that the

accused had demanded and accepted the bribe money and had kept the

same in the drawer of her table after counting. TLO introduced himself to

the accused and informed her about the complaint against her. In the

meanwhile, two lady Constables also arrived. On the directions of TLO, a

trap kit was brought, and a solution of Sodium Carbonate was prepared in

the tumbler in which shadow witness was made to dip her righthand

fingers. But the colour of the solution remained unchanged. Later, accused-

Ashu was made to rinse her right hand fingers and on doing so, the colour

of the solution turned pink. The solution so obtained was preserved in a

clean bottle which was sealed on spot. Again, the same process was

repeated and the left hand of the accused was rinsed in the solution of

Sodium Carbonate, which turned the colour of solution to light pink. It was

also preserved in another clean bottle which was sealed. Both the bottles

were marked as Ext. „A‟ and „B‟and were seized. On the directions of the

TLO, shadow witnesses searched the drawer of the table of the accused and

recovered ₹ 5,000/- bribe money and serial numbers of those notes were

tallied with the numbers noted down by the two independent witnesses on

slips with them. The bribe money and two slips were also seized. The

articles recovered on personal search were detailed in the memo.

Impressions of seal were taken on a paper, and the seal was given on

supurdnama to PW Ajay Puri. The synopsis file submitted by the

complainant was called from the accused and was seized. In this regard,

memo of the post trap proceedings was prepared. He identified the two

bottles Ext. A and B and the bribe money. He identified the order

constituting trap team (Ext. P6), pre-trap memo (Ext. P5), post trap memo

(Ext. P5/I), site plan (Ext. P5/II), memo of supurdrama and impression seal

(Ext. P5/III), memo of arrest of accused (Ext. P5/IV), seized memo of

synopsis file, (Ext. P5/V), seizure memo with respect to paper slips (Ext.

P5/VI), seizes memo with respect to recovery-seizure of bribe money (Ext.

P5/VII) and seizure memo of hand washes (Ext. P5/VIII) on the file,

carrying his signatures. He identified the synopsis file and two slips on the

file. During cross-examination, he stated that they assembled at the office

of SSP at about 12:15 PM. All the official members entered at the same

time, however, the complainant and the independent witnesses were

already there. He does not know whether the independent witnesses

questioned the complainant about the authority with the accused to approve

the synopsis. The hands of independent witness had dried when she

touched the phenolphthalein powder-stained notes after rinsing initially in

the solution of Sodium Carbonate, so there was no pinkish stain on those

notes. It is true that all the trap team members were first searched by the

independent witness and thereafter, they washed their hands. He was

standing at the corridor about 25-30 feet away from the office room of

accused. He did not remember whether the shutters of the door of the office

of the accused opened inwards. It is true that persons inside the room were

not visible to him. He cannot say about the conservation between the

complainant and the accused. He has no personal knowledge of the demand

or acceptance of bribe money inside the office. He did not go through the

synopsis seized on spot. Principal Ms. Kaushal Samnotra was called, and

she was present when post trap proceedings were conducted. He does not

know whether her signatures were obtained on any of the post trap memos,

but she issued a no-damage certificate. The husband of the accused was

informed telephonically about the arrest of accused, who also reached on

spot. The purse of the complainant in which bribe money was kept was not

seized. The proceedings concluded on spot at about 4.00 PM, and we

returned to office.

12. PW Zaffer Amin stated that besides him, there were other members of the

trap team including Inspector Vikram Sharma, Inspector Hari Singh and

others. Mr. H. L. Pandita was the Trap Laying Officer. He has stated about

the pre-trap proceedings and further that they reached Government College

of Education at 1.50 PM. The vehicles were stopped at some distance from

the college. He has further stated that the complainant along with witness

Sushma Kumari went towards the office of the accused, and they assumed

their respective positions. After about 10 to 15 minutes, PW Sushma Rani

flashed pre-fixed signal to Trap Laying Officer and thereupon, the Trap

Laying Officer along with team members went inside the office of the

respondent. He has deposed in respect of the recovery of the bribe amount

from the drawer of the table and, also in respect of the hands wash of the

respondent. He proved the documents. (ExtP5/1, ExtP5/II ExtP/III,

ExtP5/IV,ExtP5/V, ExtP5/VII, ExtP5/VII, ExtP5/VIII). During cross-

examination, he stated that he was 25 ft. away from the place of occurrence

and door of the room was not visible to him. He expressed ignorance as to

whether the pre-fixed signal was flashed by the PW Sushma Rani from

inside the room or outside.

13. PW Sanjay Bhat stated that in the year, 2017 he was serving with

Vigilance Organization, Jammu and he was assigned the job of dusting.

The complainant-Sonia Sharma and independent witnesses-Sushma Rani

AEE and Ajay Puri AEE and other team members were present. He was

introduced to the team members, thereafter, Sonia Sharma handed over ₹

5,000/- comprising of two currency notes each of ₹ 2000 and ₹ 500

denominations. The serial numbers of currency notes were noted by the

independent witnesses separately and retained with themselves. Thereafter,

one trap kit briefcase and phenolphthalein powder were brought from the

Malkhana and one solution of Sodium Carbonate was prepared. Thereafter,

he sprinkled the phenolphthalein power on the currency notes. He

identified the signature of SSP Vigilance Organization on the order by

virtue of which the trap team was conducted (ExtP6). During cross-

examination, he stated that order dated 09.12.2016 was not signed by the

SSP Vigilance Organization Jammu in his presence.

14. PW Inspector Mushtaq Ahmed stated that in the month of December, he

was working in the Vigilance Organization, Jammu. He was part of the trap

team constituted by the SSP Vigilance Organization Jammu. H. L.

Pandita, Dy.SP was the Trap Laying Officer. Constable Sanjay Bhat was

assigned the job of dusting the currency notes. When he came to the office,

the Trap Laying Officer, independent witnesses, team members were

present. He has deposed about the instructions imparted to the independent

witnesses-PWs Sushma Rani and Ajay Puri. The complaint was read over

to the complainant, and she was also questioned by the independent

witnesses. He has deposed about the demand made by the

accused/respondent from the complainant and has also stated about the pre-

trap proceedings. He has further stated that the after the completion of the

pre-trap proceedings, they went to College of Education, Canal Road

Jammu and the vehicles were parked outside the college, and they took

their respective positions. The complainant and the independent witness

Sushma Rani went inside the office. After 10 to 15 minutes, the shadow

witness flashed the pre-fixed signal to the members of trap team and the

team members went inside the office. The complainant stated that the

accused/respondent-Ashu Jolly had received bribe amount, who was sitting

on the chair. The Trap Laying Officer introduced himself and the members

to the accused/respondent. Thereafter, solution of Sodium Carbonate was

prepared, the hands of the accused were washed and the colour of the

solution turned into pink and thereafter, the bribe amount of ₹ 5000/- was

recovered from the drawer of the table of the respondent. He has also

deposed about the initial washing of the hands of the shadow witness. The

currency notes were tallied with the numbers noted by the independent

witnesses, and they were found to be same. He also proved the ExtP5/1,

ExtP5/II, ExtP5/III, ExtP5/ IV,ExtP5/V,ExtP5/VII, ExtP5/VIII. During

cross-examination, he stated that the complainant had not mentioned the

name of earlier Guide in the application filed by her. He expressed

ignorance about the questions posed by independent witnesses to the

complainant. He was standing at the distance of 25 ft from the place of

occurrence. The accused/respondent was not visible to him from the place,

where he was standing. The proceedings were conducted from 2 to 4.30

PM. Principal had come on spot prior to the arrest of the

accused/respondent.

15. PW Bansi Lal stated that he was posted as Executive Magistrate Jammu.

He has deposed about the resealing of the seized material, so that the same

could be sent to FSL Jammu. He identified the signatures of the SSP on the

communication (ExtP-13). He had resealed exhibit A and B and he also

proved the letter dated 14.12.2016. He also identified his signatures on

Exhibit A and B.

16. PW Dr. Joginder Kumar Yadav has stated that in the year 2016, he was

posted as Regional Director, IGNOU, Regional Centre, Jammu. He had

written a letter dated 28.12.2016 in response to the letter dated 21.12.2016.

He proved the contents of the letter. He also identified the record annexed

with the said letter (EXTP-9). The record was of empanelled supervisors

for M.A. Edu./M.Ed Guides and the empanelment was done by the

Headquarters. The respondent-Ashu Jolly also figured in the list of

empanelled Supervisors/Guides. During cross-examination, he stated that

the complainant sent her synopsis number of times for approval, but they

were rejected thrice, as her synopsis was not in accordance with the

guidelines. This is true that the Guide of the complainant could have sent

the synopsis again for approval after rectifying the same. The complainant

had not made any application for change of Guide. The job of the Guide is

to rectify the synopsis and not to pass. There is a separate panel for passing

the synopsis.

17. PW Professor Kaushal Samotra stated that on 09.12.2016, he was posted

as Principal, Government College of Education, Jammu and the respondent

was posted there as Assistant Professor. The Vigilance Officials informed

him that the respondent had been trapped while demanding and accepting

bribe. On the asking of the SSP, Vigilance Organization, Jammu, he

provided photocopies of the Service Book, Posting and Appointment

Orders, Joining Report which were attested by him. He proved the letter

(EXTP-10) and, also identified the copies of three documents forwarded by

him marked as M10, M10/1 and M10/2 respectively. He further stated that

he does not know Sonia Sharma-complainant in the case, and she was not

on the rolls of the College. He had not seen personally the accused

demanding and accepting the bribe.

18. PW Pawan Abrol, Scientific Officer, FSL, Jammu stated that he

examined the contents of the bottles and as per his report, Phenolphthalein

and Sodium Carbonate were found present in Exhibit Nos. P-2406/2016

and P-2407/2016. He proved the report- Ext.P-11.

19. PW Hira Lal Pandita, Dy. SP, Trap Laying Officer (TLO) stated that

after perusing the written complaint of the complainant, he also made the

independent witnesses to go through the same, who questioned the

complainant as well. The complaint of the complainant was primarily that

bribe was demanded for clearing her synopsis and it was rejected four

times earlier. She had demanded ₹5000 as first instalment, to be paid that

day. He deposed about the pre-trap proceedings. He further stated that the

complainant was instructed to hand over those notes only on demand as

bribe to the respondent or the person directed by her. Sushma Rani was

associated as shadow witness and was apprised of her role. Thereafter, the

team members accompanied by the complainant and independent witnesses

left for Canal Road by two official vehicles. After reaching the spot, the

team members proceeded inside the Government College of Education.

The complainant and witness proceeded inside the room of the respondent,

that was in third row of three rooms and the other team members took

positions in the lawn and veranda. After 10 minutes, the shadow witness

flashed the pre-fixed stop signal as directed. He along with other team

members rushed inside and found the respondent present in the office

sitting on her table towards the left side. The complainant and the

independent witness introduced themselves to the accused and further

narrated that the accused had demanded, accepted the bribe money and had

kept the same in the drawer of her table. Principal of the College was also

called on spot. He deposed about the washing of the fingers of the

respondent and changing of the colour of the solution. The drawer of the

table of the accused was searched through PW Sushma Rani and bribe

money was recovered from there. The money was found to be the same

currency notes which were produced by the complainant for payment of

bribe. The bribe money was seized and the two slips with the witnesses

containing their serial numbers were also seized. The synopsis submitted

by the complainant was also recovered from the respondent and seized on

spot. He prepared the site plan, and the independent witnesses were

allowed to go to their office. No damage certificate was obtained from the

Principal. He identified two bottles marked as A & B shown to him in the

court and also the bribe money. He was also shown the complaint lodged

by the complainant (EXT-P1), FIR registered (EXT-P1/I), memo of pre-

trap proceedings (EXT-P5), order of SSP constituting trap team (EXT-P6),

memo of post-trap proceedings (EXT-P5/I), site plan (EXT-P5/II), memo

of supurdnama of seal (EXT-P5/III) arrest memo of respondent (EXT-

P5/IV), seizure memo of synopsis (EXT-P5/V) and also the seized synopsis

Mark-2, seizure memo of two paper slips (EXT-P5/VI) and two slips EXT-

P2, EXT-P3, recovery-cum-seizure memo of bribe money (EXT-P5/VII)

and seizure memo of the hands wash of the respondent (EXT-P5/VIII) and

he admitted the same to be true. He also identified no damage certificate

(EXTP-12). During cross-examination, he stated that he had put certain

questions to the complainant for satisfaction of the genuineness of the

complaint. He questioned the complainant as to why her synopsis was

rejected four times earlier, to which she replied that it was not cleared for

want of payment of bribe. The complainant had made no mention about

demands made previously and the amounts demanded. PW Sushma Rani

gave signal from the door. He was standing at Point 4 at the time of trap.

He had not mentioned the position of any trap members. He did not go

through the synopsis.

20. PW SSP Shabir Ahmed Malik stated that he was posted as SSP VOJ in

the year 2016. He received the written application from Sonia Sharma

against the accused-Ashu Jolly, wherein she had alleged that the respondent

was demanding Rs. 10,000/- for clearing her synopsis for M.Ed. He further

stated that she was to pay her first instalment of ₹ 5,000 that day as per the

agreement. He registered the FIR No. 25/2016 immediately and entrusted

the investigation to Inspector Naresh Sharma. He also constituted a trap

team headed by Dy.SP. H. L. Pandita and wrote to Chief Engineer PDD for

deputing two gazetted officers as independent witnesses. He identified the

application filed by the complainant (EXT-P-1). He also identified the FIR

(EXT-P-1/1) and order constituting trap team (EXT-P6). He also identified

the letter written to Chief Engineer PDD (EXT-P-15). During cross-

examination, he stated that the complainant was accompanied by her

husband.

21. PW Naresh Sharma, Inspector, stated that in the year, 2016, he was

posted in the Vigilance Organization Jammu. He had investigated the FIR

No. 25/2016 pursuant to the order of SSP Vigilance Organization Jammu.

He examined the complaint submitted by the complainant-Sonia Sharma

and thereafter handed over the file to Hira Lal Pandita, who conducted the

pre-trap and post-trap proceedings. He recorded the statements of the

witnesses. He also got the bottles marked as A and B resealed from the

Tehsildar Jammu and sent to FSL for their examination. He also obtained

the report of the expert. As per his investigation, the respondent had

committed an offence under sections 5(1)(d) read with section 5(2) and 4A

of the Prevention of Corruption Act. He also obtained the sanction for

prosecution of the respondent and produced the chargesheet before the

concerned court.During cross-examination, he stated that after taking over

the investigation, he did not go on leave. This is wrong that he had not

given any priority to that case. Rather the charge sheet was filed within

four months. He had recorded the statement of the complainant on

11.02.2017. This is true that the complainant had not levelled any

allegation against Zubair Ahmed. The initial approval is given by the

Guide; however, it is the panel of experts who accords final approval to the

synopsis. No documentary evidence emerged investigation in respect of

selection of the respondent as Guide by the complainant.

Appreciation of evidence:

22. Before this Court proceeds ahead to adjudicate the contentions raised by

the appellant, it would be apt to take note of judgments of the Hon‟ble

Supreme Court in respect of the scope of the interference in appeal arising

out of judgment of acquittal.

23. In Chandrappa v. State of Karnataka1, the Hon‟ble Apex Court has held

as under:

"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not

(2007) 4 SCC 415

disturb the finding of acquittal recorded by the trial court."

(emphasis added)

24. In BhupatbhaiBachubhai Chavda & Anr. v. State of Gujarat 2 , the

Hon‟ble Supreme Court of India has held as under:

"It is true that while deciding an appeal against acquittal, the Appellate Court has to reappreciate the evidence. After re- appreciating the evidence, the first question that needs to be answered by the Appellate Court is whether the view taken by the Trial Court was a plausible view that could have been taken based on evidence on record. Perusal of the impugned judgment of the High Court shows that this question has not been adverted to. Appellate Court can interfere with the order of acquittal only if it is satisfied after reappreciating the evidence that the only possible conclusion was that the guilt of the accused had been established beyond a reasonable doubt. The Appellate Court cannot overturn order of acquittal only on the ground that another view is possible. In other words, the judgment of acquittal must be found to be perverse. Unless the Appellate Court records such a finding, no interference can be made with the order of acquittal. The High Court has ignored the well-settled principle that an order of acquittal further strengthens the presumption of innocence of the accused. After having perused the judgment, we find that the High Court has not addressed itself on the main question."

(emphasis added)

25. Thus, from the law laid down by Hon‟ble the Supreme Court in the

judgments (supra), it is evident that interference with the judgment of

acquittal is warranted only when the judgment is perverse, or the vital

evidence has been ignored by the trial court while acquitting the accused or

the opinion formed by the trial court is not possible or implausible. Only

because other view better than that of the learned trial court is also

possible, on the same set of evidence led by the parties, the judgment of

acquittal cannot be interfered with.

26. Now, this Court would examine as to whether the appellant has succeeded

in making out a case for interference or not. The allegations against the

2024 INSC 295

respondent are that the respondent while being posted as Assistant

Professor in Govt. College of Education, Canal Road, Jammu demanded

illegal gratification of ₹ 10,000/- from the complainant-Sonia Sharma for

clearing her synopsis and on 9th December, 2016, the respondent demanded

and accepted ₹ 5,000/- as the first instalment of agreed amount from the

complainant, which was subsequently recovered from the drawer of the

office table placed in front of the respondent. The cause for making

demand of ₹ 10,000/- projected by the prosecution is for clearing the

synopsis of the complainant. This is not being denied by the respondent

that she was working as Assistant Professor in the Month of December,

2016. PW-Sonia Sharma has stated that her synopsis was being rejected

repeatedly and her guide Mr. Zubair Kales finally advised her to approach

the respondent, as such, she called her during the last days of

November/initial days of December and the respondent assured that her

synopsis would be cleared but she would be required to pay ₹ 10,000/-to

her as bribe out of which ₹ 5000/- would be paid by her at the time of

approval of synopsis by Assistant Professor, when she would sign and

stamp the same and another ₹ 5,000/- were to be paid after the approval.

During cross-examination, she admitted that she was conscious of the fact

that a guide could neither accept nor reject the synopsis and the panel was

constituted for that purpose. She admitted that she had herself chosen her

previous guide Mr.Zubair Kales from the list of guides placed at the office

of IGNOU and she changed her guide as she was told by her previous

guide that he was going out of State. She admitted that the job of the guide

is only to check the synopsis and put his seal and signatures thereon and it

was correct that her previous guide had never rejected her synopsis but had

only pointed out the mistakes. She further stated that she chose the

respondent as her guide on the recommendation of her previous guide. The

role of the guide is to help the student in preparing the synopsis. She further

admitted that she never filed any application with the IGNOU for changing

her guide.

27. Though the prosecution has examined Mr. Joginder Kumar Yadav and Trap

Laying Officer to prove that the respondent was in the list of empanelled

supervisors for MA Edu./M Edu.but there is nothing on record to establish

that respondent acted as a guide of complainant-PW-1 Sonia Sharma and

rather Ext P-9 proves that complanant-PW-1 Sonia Sharma having

enrolment No. 125417190 programme M.Ed. was carrying out her project

under Zubair Kales and the office of the Regional Director had received no

communication from learner side regarding preparation of synopsis under

the guidance of Ashu Jolly i.e. the respondent. Further PW Joginder Kumar

Yadav has stated that job of the guide is not to pass the synopsis and rather

synopsisis to be approved by a separate panel. In view of the above, this

Court is of the considered view that the prosecution has miserably failed to

prove that the respondent was acting as a guide of the complainant in

pursuing her M.Ed course from IGNOU, Jammu.

28. In the complaint i.e. Ext P-1 dated 09.12.2016, it was stated by the

complainant-Sonia Sharma that her synopsises was rejected four times and

she had changed her guide as Ashu Jolly- respondent. She was demanding

₹ 10,000/- as bribe from her for clearing her synopsis and under the

compelling circumstances, she was going to hand over first instalment of ₹

5,000/- to her. The Exp-1 gives the impression that because of repeated

rejections of her synopsises, she voluntarily changed her previous guide i.e.

Mohd Zubair Kales, whereas in her deposition before the Court, she has

stated that as her previous guide Mohd Zubair Kales was going out of the

State, so he asked her to get in contact with the respondent. PW H .L

Pandita, Trap Laying Officer in his deposition stated that the complaint of

the complainant was primarily that bribe was being demanded from her for

clearing her synopsis. He has further stated in cross-examination that the

complainant had told her that her synopsis was not cleared earlier for want

of bribe.There is no evidence in respect of earlier demand of bribe as to

who demanded the bribe initially as the synopsis was rejected earlier four

times and it is not the case of the prosecution that the synopsis was not

cleared earlier, prior to the respondent coming into picture for want of

bribe. Under such circumstances, Mohd Zubair Kales was the material

witness, but he has not been associated with the investigation by the

Investigating Officer and no explanation is forthcoming from the

prosecution for not associating Mohd Zubair Kales with the investigation.

There are contradictions between the initial story projected by the

complainant in her application (ExtP-1) and her subsequent deposition in

the court. This material contradiction alongwith the lack of any evidence in

respect of engagement of the respondent as a guide, causes a serious dent in

the prosecution case.

29. It was vehemently argued by Ms. Monika Kohli, learned Sr. AAG that the

prosecution has proved the demand and acceptance of money by the

respondent and the subsequent recovery of bribe money from the table

lying in front of the respondent. In the evidence of PW-1 Sonia Sharma, it

has come that out of ₹ 10,000/- demanded as bribe by the respondent, ₹

5,000/- were to be paid by her at the time of approval of synopsis when

Assistant Professor was to sign and stamp the same and another ₹ 5000/-

were to be paid after the final approval. During cross-examination, she

admitted that the synopsis on the file was neither signed nor stamped by the

respondent and she handed over ₹ 5,000/- to the respondent without

checking the same. A sum of ₹ 5,000/- was to be paid by the complainant-

PW-1-Sonia Sharma when respondent was to approve and put her seal and

signature on the synopsis but it is quite surprising that PW-Sonia Sharma

without ascertaining as to whether the respondent had signed and put her

seal on the synopsis, paid an amount of ₹ 5,000/- to her. This is also a

material discrepancy in the prosecution case, particularly when the amount

was to be paid by the complainant only at the time of signature and seal of

the respondent and it is difficult to believe that the complainant without

ascertaining the seal and signature on the synopsis would pay₹ 5,000/- to

the respondent.

30. Further, this Court finds that there are contradictions between the statement

of PW-1 Sonia Sharma and shadow witness PW-Sushma Rani. PW-1 Sonia

Sharma has stated that the respondent while handing over the synopsis to

her asked as to whether she had brought the money and then the

complainant took out the currency notes from her purse and handed over

the same to the respondent. If she was handed over the synopsis, then why

didn‟t she take the synopsis along with her, particularly when the bribe was

paid for that. PW-2 Sushma Rani-shadow witness has stated that the

complainant asked the respondent about her synopsis, to which the

respondent retorted as to whether she had brought the money as demanded

and thereupon the complainant took out ₹ 5,000/- from her bag and handed

over the same to the respondent. The complainant PW-1 Sonia Sharma has

nowhere stated that the respondent asked the complainant as to whether she

had brought the money "as demanded" and further in her cross-

examination, PW-2 Sushma Sharma has stated that she did not remember

whether the respondent put her signatures and seal on the synopsis before

accepting the money, however, she shuffled the pages of the synopsis

before accepting the money but did not ask anything about the same before

or after taking money. From the statement of the shadow witness, it is not

forthcoming as to whether, synopsis was handed over to the complainant or

not. Thus, there are material contradictions between the statement of the

complainant and shadow witness in respect of mode and manner in which

the demand of ₹ 5,000/- was made by the respondent and the amount was

accepted by her. These contradictions cause serious doubt, the benefit of

which must go to the accused/respondent.

31. It is also apt to observe here that PW Sushma Rani-shadow witness in her

cross-examination has stated that the member standing in the veranda was a

constable whose name was perhaps Jagdev. She passed signal to the said

constable. PW Inspector Vikram Sharma has deposed that Constable

Jagdev Singh was part of trap team.Besides Zubair Ahmed Kales, he was

another important witness more particularly in view of statement made by

PW Sushma Kumari, who has not been associated with investigation and

consequently not cited as witness in a chargesheet. This omission also

causes serious doubt about the prosecution case. In „Takhaji Hiraji v.

Thakore Kubersing Chamansing & Others‟ 3 , Hon‟ble the Supreme

Court of India has observed as under:

"19. So is the case with the criticism levelled by the High Court on the prosecution case finding fault therewith for non- examination of independent witnesses. It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses."

(emphasis added)

32. Hon‟ble the Supreme Court of India in P. Satyanarayana Murthy vs. The

Dist. Inspector of Police and Anr4, has held as under:

"18. This Court in A. Subair vs. State of Kerala (2009)6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.

19. In State of Kerala and another vs. C.P. Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-à-vis the same

2001 AIR SC 2328

2015 AIR SC 3549

offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded 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. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise."

Emphasis added

33. Thus, in view of the law laid down by Hon‟ble the Supreme Court as

mentioned above, the proof of demand of illegal gratification is gravamen

of an offence under Section 5(1) (d) read with Section 5(2) and 4-A of

Prevention of Corruption Act, 2006 and in absence of the same, the charge

therefor would obliviously fail. Mere acceptance of any amount allegedly

by way of illegal gratification or recovery thereof, without proof of the

demand would not be sufficient to bring home the charge against the

respondent.

34. This court has examined the judgment passed by the learned trial court and

finds that the learned trial court has not taken into consideration the

statements of few witnesses and even if this court remands the matter back