Nagesh S/O Late B S Raju vs The State By Police Inspector
2022 Latest Caselaw 721 Kant

                                      CRL.A.NO.202/2011 C/W
                                          CRL.A.NO.211/2011

                          1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 17TH DAY OF JANUARY 2022

                       BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

         CRIMINAL APPEAL NO.202/2011
                     C/w
         CRIMINAL APPEAL NO.211/2011
Crl.A.No.202/2011:

BETWEEN:

K.S.NARAYAN
WORKING AS REVENUE INSPECTOR
TALUK OFFICE, BILIGERE CIRCLE
NANJANGUD TALUK, MYSORE DISTRICT
R/AT 18TH CROSS, KABINI COLONY ROAD
NANJANAGUD TALUK
MYSORE DISTRICT
NOW TEMPORARILY
COME DOWN TO BANGALORE

SINCE DEAD BY HIS
LEGAL REPRESENTATIVE
SMT.PRABHAMANI
W/O LATE K.S.NARAYAN
R/AT 18TH CROSS
KABINI COLONY ROAD
NANJANAGUD TALUK
MYSORE DISTRICT                            ...APPELLANT

(BY SRI P.N.HEGDE, ADVOCATE)

AND:

STATE BY LOKAYUKTHA POLICE
REP. BY STANDING COUNSEL &
                                         CRL.A.NO.202/2011 C/W
                                            CRL.A.NO.211/2011

                           2


SPECIAL PUBLIC PROSECUTOR
FOR KLA CASES IN THE
HON'BLE HIGH COURT OF KARNATAKA
BANGALORE                                 ...RESPONDENT

(BY SRI B.S.PRASAD, SPL.P.P./STANDING COUNSEL)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
11.02.2011 PASSED BY III ADDITIONAL DISTRICT & SESSIONS
JUDGE, SPECIAL COURT, MYSORE IN SPECIAL CASE
NO.20/2008 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(D) READ
WITH SECTION 13(2) OF THE PREVENTION OF CORRUPTION
ACT 1988 AND ETC.

Crl.A.No.211/2011:

BETWEEN:

NAGESH
S/O LATE B.S.RAJU
VILLAGE ACCOUNTANT
NAGARLE CIRCLE
(I/C ALAGANCHI CIRCLE)
NANJANGUD TALUK
MYSORE DISTRICT                              ...APPELLANT

(BY SRI VENKATESH C SHARMA, ADVOCATE)

AND:

THE STATE BY POLICE INSPECTOR
KARNATAKA LOKAYUKTHA
MYSORE
REP. BY SPECIAL PUBLIC PROSECUTOR
FOR LOKAYUKTHA CASES
HIGH COURT BUILDING
BANGALORE                                 ...RESPONDENT

(BY SRI B.S.PRASAD, SPL.P.P./STANDING COUNSEL)
                                            CRL.A.NO.202/2011 C/W
                                               CRL.A.NO.211/2011

                             3


      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
11.02.2011 PASSED BY III ADDITIONAL DISTRICT & SESSIONS
JUDGE, SPECIAL COURT, MYSORE IN SPECIAL CASE
NO.20/2008 CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 7, 13(1)(d) READ
WITH SECTION 13(2) OF THE PREVENTION OF CORRUPTION
ACT 1988.

     THESE CRIMINAL APPEALS COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT         THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:


                        JUDGMENT

Aggrieved by the order of conviction and sentence

passed against them for the offences punishable under

Sections 7, 13(1)(d) read with Section 13(2) of the

Prevention of Corruption Act, 1988 ('the Act' for short), the

accused have preferred the above appeals.

2. Pending these appeals the appellant (accused

No.1) in Criminal Appeal No.202/2011 died and his legal

representatives are pursuing the said appeal. The

appellant in Crl.A.No.211/2011 is accused No.2. For the

purpose of the convenience, parties will be referred to

henceforth according to their ranks before the trial Court.

CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

3. Lokayukta police charge sheeted accused

Nos.1 and 2 in Crime No.2/2007 of their police station for

the offence punishable under Sections 7, 13(1)(d) read

with Section 13(2) of the Act on the basis of the complaint

of PW.1 Sheik Mohiddin Arafath.

4. During February 2007 accused No.1 was

working as Revenue Inspector and accused No.2 was

working as Village Accountant in Taluka office Nanjangud.

CW.4 and CW.5 the father and uncle of PW.1 had

purchased lands situated within the limits of Alaganji

village of Nanjangud Taluk. The concerned Sub-Registrar

had sent intimation to Taluka office of Nanjangud about

the registration of sale deeds in their favour and for

change of Khatha.

5. PW.1 filed complaint as per Ex.P1 before the

respondent police alleging that in connection with change

of Khatha in favour of his father and uncle, he visited the

office of accused No.1 on 03.02.2007 and sought for

change of Khatha. He further alleged that accused No.2 CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

sought certain documents and on 14.02.2007 when he

visited accused No.2 along with documents, accused No.1

demanded illegal gratification of Rs.30,000/- for

changing Khata and ultimately on negotiation agreed for

Rs.10,000/-. He claimed that since he was unwilling to

give illegal gratification, he filed complaint.

6. On the basis of such complaint, PW.5

registered the FIR as per Ex.P21 against the accused. He

said to have secured PWs.2 and 3 as witnesses for pre-

trap proceedings and conducted the pre-trap mahazar as

per Ex.P2 on 21.02.2007 between 11 a.m. to 12 noon.

During entrustment Mahazar Ex.P2, bait money consisting

of five currency notes of denomination of Rs.1,000/- each

and ten currency notes of denomination of Rs.500/- each

as per MO-1(a) were allegedly produced by PW.1 before

Investigating Officer and panchas. After demonstration of

chemical reaction of phenolphthalein and sodium

carbonate solution, currency notes were handed over to

CW.1. Thereafter, PW.5 sent PW.3 as shadow witness CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

along with PW.1 to the office of the accused with

instructions that PW.1 shall handover the bait money to

the accused, only if they demand and accept and then

shall give the signal.

7. It is further case of the prosecution that PWs.1

and 3 went to the office of the accused in Nanjangud,

When PW.1 requested the accused to do his work, accused

demanded money and took him to nearby Hotel to have

Tea. When they came out of Hotel near temple Chariot

accused No.1 allegedly directed PW.1 to handover MO-1(a)

to accused No.2. Accordingly PW.1 allegedly handed over

the bait money to accused No.2, he kept that in his right

pant pocket, PW.1 gave signal and PW.5 went to the spot

caught hold of accused Nos.1 and 2 and took them to the

administrative office of temple.

8. According to the prosecution in the office of the

administrator of temple, the Investigating Officer

conducted the procedure of washing the hands of the

accused in sodium carbonate solution, recovered the bait CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

money from the possession of accused No.2 seized the bait

money, the documents, secured the statements of accused

Nos.1 and 2 as per Exs.P15 and 16 and recorded the

proceedings in trap mahazar as per Ex.P3. Thereafter he

conducted further investigation. The Investigating Officer

said to have seized the relevant documents, sent the

incriminating article for scientific examination, received the

FSL report as per Ex.P37 and filed charge sheet.

9. The trial Court on hearing the accused framed

the charges against them for the offences punishable

under Sections 7, 13(1)(d) read with Section 13(2) of the

Act alleging that the accused being public servants

demanded illegal gratification of Rs.30,000/- from PW.1 for

changing of Khatha of land in favour of CWs.3 and 4 and in

pursuance of such demand on 21.02.2007 accused No.2 at

the instance of accused No.1 received illegal gratification

of Rs. 10,000/-. Since the accused denied the charges, the

trial was conducted. In support of the prosecution case,

PWs.1 to 6 were examined and Exs.P1 to P39, MOs.1 to CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

MO.10 were marked. The trial Court examined the accused

under Section 313 of Cr.P.C. The accused did not lead

defence evidence.

10. The trial Court on hearing both side by the

impugned judgment and order, convicted accused Nos.1

and 2 for the offences punishable under Sections 7,

13(1)(d) read with Section 13(2) of the Act and sentenced

them to Rigorous imprisonment of one year and fine of

Rs.10,000/- The trial Court further sentenced the accused

to undergo simple imprisonment of three months, if they

fail to pay the fine amount.

11. Aggrieved by the said order of conviction and

sentence, accused No.1 has preferred Criminal Appeal

No.202/2011 and accused No.2 has preferred Criminal

Appeal No.211/2011.

12. The submission of Sri P.N.Hegde, learned Counsel for accused No.1:

(i) To convict the accused for the offences

punishable under Sections 7 and 13(1)(d) of the Act, the CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

prosecution has the burden of proving the demand and

acceptance of illegal gratification, only thereafter

presumption under Section 20 of the Act is available.

(ii) The prosecution has failed to discharge the

initial burden itself. Though according to the prosecution

conversation of PW.1 and accused regarding the demand

of illegal gratification was recorded on tape recorder and

cassette, that was not played before the Court and marked

in evidence. PW.2 the shadow witness totally turned

hostile regarding demand and acceptance.

(iii) The transcription of Tape Recorder

conversation was not produced. The alleged trap took

place in public place, therefore demand and acceptance of

illegal gratification in a public place itself does not inspire

the confidence of the Court. Since the acceptance of

money allegedly took place in the public place, PW.2 and

PW.5 also should have witnessed the same. But they do

not speak to that effect. They say that it was the

complainant who told them that accused No.2 has received

the money.

CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

(iv) Under such circumstances the trial Court was

not justified in convicting and sentencing the accused only

on the solitary evidence of PW.1. PW.1's evidence was

self-contradictory about the demand made by the accused

and he changed his version. The Investigating Officer did

not examine the Executive officer of the temple in whose

office the alleged trap mahazar was drawn.

(v) Admittedly, from accused No.1 there was no

recovery, therefore presumption under Section 20 of the

Act regarding demand and acceptance does not arise

against him.

(vi) As per the Karnataka Land Revenue Rules, the

Khatha cannot be changed unless 30 days notice is issued

to the interested persons. Admittedly on the date of trap,

30 days had not elapsed, thereby no official work was

pending with accused No.1.

Submissions of Sri Venkatesh.C.Sharma, learned Counsel for accused No.2:

(i) The trial Court relied on the solitary evidence

of PW.1 ignoring the contradictions in the evidence of CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

witnesses. As per PW.5 the recovery of bait money was

from accused No.1. As per trap mahazar recovery was

from accused No.2. PW.5 in his evidence states that the

hand wash of accused No.2 did not change the colour.

Regarding pre-trap mahazar no photographs were taken

and there are material contradictions regarding the place

of pre-trap proceedings. The charges framed were not

proper. Ex.P37 the FSL report states that the wash of the

pant of accused No.2 tested negative for Sodium

Carbonate solution and the denomination of the currency

notes mentioned in Exs.P2, P3 and Ex.P17 materially

differ.

(ii) As per pre-trap mahazar the instructions was

given to handover the money to accused No.1. PW.1 in his

cross-examination unequivocally states that accused No.2

did not demand any money for change of Khata. PW.1

himself admitted that he had not informed accused No.2

about accused No.1 demanding illegal gratification till they

reached the chariot. He also unequivocally admitted that

accused No.2 did not raise objection for changing the CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

khata or pressing for anything. Such material admissions

in the evidence of PW.1 were overlooked by the trial Court.

(iii) The evidence of PWs.3 and 2 show that the

documents and the alleged explanations were created one.

The FSL report does not support the prosecution case. The

evidence of PW.5 also shows that the demand and

acceptance were not proved. He says that accused No.1

demanded and accepted the money. As per the charge,

both accused demanded illegal gratification, but the trial

Court convicted saying that there was conspiracy between

accused Nos.1 and 2.

13. Learned Counsel for both accused/ appellants

in support of their submissions relied on the following

judgments:

        i).     Panalal  Damodar      Rathi     v    State      of
                Maharashtra1
        ii).    P. Satyanarayana Murthy v. State of A.P.2

iii). Krishan Chander v State of Delhi3

iv). State of Punjab v. Madan Mohan Lal Verma4

(1979) 4 SCC 526

(2015) 10 SCC 152

AIR 2016 SC 298

AIR 2013 SC 3368 CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

14. Submissions of Sri B.S.Prasad learned Special Public Prosecutor:

(i) The appellants being public servants in-charge

of change of Khatha is not disputed. Though PW.3 turned

hostile, his entire evidence need not be disbelieved. His

evidence regarding receipt of money is not denied. There

is no material contradiction in the evidence of the

witnesses regarding pre-trap mahazar.

(ii) So far as 30 days of time to notify the change

of khatha, pending work is not pre-condition for demand

and acceptance. Anyway pendency of work for change of

khatha was not disputed. Accused No.2 in the cross-

examination of PW.1 has suggested that demand was by

accused No.1. The evidence of PW.2 corroborates the

evidence of PW.1 regarding mahazar. Since the witnesses

have given the evidence three years after the incident, the

minor discrepancies are bound to occur in their evidence.

(iii) The prosecution has successfully discharged the

initial burden of demand and acceptance. Therefore the CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

presumption under Section 20 of the Act arises. The

accused did not rebut the same. The accused not choosing

their private office to receive the money does not falsify

the prosecution case. The inconsistency regarding the

denomination of currency notes in the FSL report being

minor, that does not demolish the case of the prosecution.

(iv) PW.1 had no enmity with the accused, hence

there was no ground for false implication. It was for the

accused to explain the possession of the bait money. They

failed to do that. The trial Court on sound appreciation of

evidence convicted and sentenced the accused. The order

of the trial Court does not call for any interference.

15. In support of his submission, he relies on the

judgment of the Hon'ble Supreme Court in Vinod Kumar v.

State of Punjab5.

16. Having regard to the rival contentions, the

point that arise for consideration of this Court is "Whether

(2015) 3 SCC 220 CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

the impugned order of conviction and sentence is

sustainable in law?".

17. The trial Court convicted and sentenced the

accused for the offences punishable under Sections 7,

13(1)(d) read with Sections 13(2) of Prevention of

Corruption Act 1988. For better clarification and analysis of

the evidence it is useful to refer to the relevant provisions

of Sections 7 and 13(1)(d) of the Act which read as

follows:

"7. Public servant taking gratification other than legal remuneration in respect of an official act.-- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.

CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

13. Criminal misconduct by a public servant.-- (1) A public servant is said to commit the offence of criminal misconduct,--

(d) if he,--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or"

18. Reading of the above provision shows that to

sustain the conviction under Sections 7, 13(1)(d) of the

Act, the prosecution has to establish that the accused were

public servants and they demanded and accepted any

gratification other than legal remuneration as a motive or

reward for doing or forbearing to do any official act or for

showing or forbearing to show any favour in the exercise

of his official functions.

19. No doubt it is true that accused did not dispute

that they were Revenue Inspector and Village Accountant

in Alaganji village and work of the father and uncle of PW.1

regarding change of khatha of the land was pending with CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

them. But according to them the Karnataka Land Revenue

Rules require issuance of 30 days notice prior to

submission of the records to the Higher officer

recommending for change of khatha.

20. It is their further contention that they had to

receive report from Tahsildar of Chamarajanagar to the

effect that the sale in favour of the father and uncle of

PW.1 was not hit by Sections 79 and 80 of Karnataka Land

Reforms Act. It is their contention that PW.1 was pressing

them to recommend for change of khatha without report of

Tahasildar regarding compliance of Sections 79 and 80 of

Karnataka Land Reforms Act. To arm-twist them for his

goal, he tricked them into trap and criminal case. They

denied demand and acceptance of illegal gratification.

21. In the complaint Ex.P1 the allegation of

demanding Rs.30,000/- and settling the demand amount

to Rs.10,000/- are only against accused No.1, But in the

complaint he seeks action against both accused Nos.1 and

2. The trap mahazar Ex.P3 states that PW.1 revealed the CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

trap party that accused No.2 accepted the illegal

gratification on the instructions of accused No.1. He did

not implicate accused No.2 for demand. For that he

implicated only accused No.1. In the cross-examination he

denied implication of only accused No.1.

22. So far as accused No.1, there was no

independent evidence of demand. PW.3 is shadow witness.

As rightly pointed out by learned Counsel for the appellant

both PW.2 and PW.3 turned hostile regarding demand and

acceptance. Contrary to that, PW.3 deposed that in the

office of accused Nos.1 and 2 he did not hear the

conversation between the accused and PW.1 and says that

accused No.1 told PW.1 that he will not come to hotel and

PW.1 took them to the hotel forcibly. He further stated

that PW.1 tried to give money to accused No.1, he did not

accept that, but asked to hand over money to accused

No.2. Therefore absolutely there was no evidence of

demand by accused No.2.

CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

23. The prosecution claims that the conversation

between accused No.1 and PW.1 regarding demand of

bribe before trap and during trap was recorded in a

cassette. The said cassette was not marked in evidence.

The said conversation was not transcribed and produced

before the Court.

24. Hon'ble Supreme Court in Panalal Damodar

Rathi's case referred to supra held that in corruption cases

the evidence of complainant shall be corroborated in all

material particulars. In Madan Mohan Lal Verma's case

referred to supra, Hon'ble Supreme Court held that in trap

cases the complainant is the interested and partisan

witness concerned with the success of the trap and his

evidence must be tested in the same way as that of any

other interested witness. It was held that, therefore the

Court has to look for independent corroboration to the

complainant's evidence before convicting the accused

persons.

CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

25. In the light of the aforesaid judgments the trial

Court ought to have sought corroboration to the evidence

of PW.1 by the evidence of shadow witness PW.3. As

already pointed out, PW.3 did not corroborate the evidence

of PW.1 with regard to demand by accused Nos.1 or 2.

26. PW.2 another mahazar witness was in the trap

team. Though he was treated as hostile and cross-

examined by the Special Public Prosecutor, nothing could

be elicited in his cross-examination about any demand by

accused No.1 or acceptance by accused No.2. According to

learned Counsel for the accused, the whole trap was only

to fix the accused into the case. They even challenged the

pre-trap mahazar proceedings also. As pointed out by

learned Counsel for the accused, when PW.1 says that pre-

trap mahazar was conducted in the Lokayukta Office,

PWs.2 and 3 mahazar witnesses say that same was

conducted in the car in Maharaja College grounds.

Therefore the evidence of PW.1 was not corroborated by

the evidence of other witnesses.

CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

27. It is not the case of the complainant himself

that accused No.2 demanded the illegal gratification. He

claims that at the instance of accused No.1, accused No.2

received the money. The trial Court also holds that

demand by accused No.2 was not proved.

28. The prosecution relies on the explanation of

the accused in Ex.P.15. In Ex.P15, accused No.1 has

denied the allegations of demand. Admittedly he had not

received the money. Therefore said explanation in no way

help the prosecution to prove the case of demand.

29. So far as Ex.P16, first of all, such confession of

co-accused cannot be used against accused No.1 to convict

him for the crime. Secondly, accused No.2 in the cross-

examination of the witnesses disputed that he voluntarily

gave such explanation. To substantiate such contention,

accused No.2 relied on the evidence of PW.2. In para 4 of

his cross-examination, PW.2 states that the police took

signatures of the accused on several documents in the CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

room of temple and that was not videographed, he does

not know how the money reached the hands of accused

No.2.

30. PW.2 further says that by the time, he went

there, the police had arranged everything and signatures

were taken in Lokayukta office. He further states that

before he went to the room in Nanjangudu, the police told

him that they have to go to the police station and prepare

some documents. Therefore took all of them to the police

station. He further states that he does not know what all

police did in the said place.

31. PW.3 is star witness of the prosecution i.e. the

shadow witness. In his cross-examination, PW.3 says that

he noticed that the complainant was placing money in the

hands of the accused due to somebody's pressure. He did

not find that accused No.2 was receiving the money

voluntarily. That means he did not accept that. PW.3 says

that the police did not take signatures of accused No.2 at

the place of trap. He further says that when the police CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

asked the accused to give their explanation, accused were

looking at the face of each other and the police who had

engaged in typewriting asked the accused to give the

explanation as dictated by them. According to the direction

of the police, he wrote. This evidence of PWs.2 and 3

creates doubt about accused No.2 giving Ex.P16

voluntarily.

32. It is no doubt true that in Vinod Kumar's case

referred to supra relied on by learned Special Public

Prosecutor, it was held that even if the witness is

characterized as hostile witness, his evidence is not

completely effaced. But at the same time, it was further

held that the conviction can be based on such evidence of

the hostile witness provided the same is corroborated by

other reliable evidence.

33. In the judgment in Khujji v. State of M.P.6

relied on by learned Special Public Prosecutor, it was held

that even though if there was some material in evidence to

AIR 1991 SC 1853 CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

doubt the testimony, if there is no cause to give false

evidence, the contradictions occurred in the evidence are

natural. The said judgment cannot be justifiably applied to

the facts of the present case.

34. In the light of the above facts and

circumstances, the trial Court was not justified in holding

that the charge of demand of illegal gratification was

proved beyond reasonable doubt. So far as acceptance,

the trial Court based on the explanations Exs.P15 and 16

holds that the explanation helps the prosecution to raise

the presumption under Section 20 of the Act.

35. The language of Section 20 of the Act shows

that presumption can be raised, only if acceptance on the

part of the accused is proved. The acceptance is not mere

custody of the money. But it is voluntary receipt of money.

In that context, the Larger Bench of the Hon'ble Supreme

Court in P.Satyanarayana Murthy's case referred to supra

held that mere acceptance of any amount allegedly by way

of illegal gratification or recovery of amount dehors proof CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

of the demand ipso facto would not be sufficient to prove

the charges under Sections 7 and 13 of the Act.

36. In Krishan Chander's case referred to supra

relied upon by learned Counsel for the appellants, the

Hon'ble Supreme Court held that where pancha witnesses

did not hear the conversation between the accused and the

complainant when the complainant approached the

accused to give bribe money and there were contradictory

statements made by the complainant regarding demand

were not explained in the cross-examination of the

Investigating Officer, accused are entitled for acquittal. In

the judgment in Madan Mohan Lal Verma's case referred

to supra it was held that mere receipt of amount by the

accused is not sufficient to prove the guilt in the absence

of any evidence of acceptance of the amount as illegal

gratification.

37. To sum up, as per the prosecution itself, there

was no receipt of money by accused No.1. Therefore

explanation by him does not arise. As already held the CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

demand by accused No.1 was not proved beyond

reasonable doubt.

38. So far as accused No.2, though money was

allegedly recovered from him, the evidence of independent

witnesses i.e. PWs.2 and 3 in that regard was shaky. The

denominations of the currency notes mentioned in pre trap

mahazar and post trap mahazar Exs.P2 and P3 and the

FSL Report Ex.P37 were inconsistent. The Investigating

Officer did not explain that. To clarify that the FSL

authorities were not examined. Under the circumstances,

the trial Court was not justified in raising presumption

under Section 20 of the Act in convicting the appellants.

The impugned judgment is unsustainable in law. Therefore

the appeals are allowed.

The impugned order of conviction and sentence

passed against the appellants are hereby set aside.

The appellants are acquitted of the charges for the

offences punishable under Sections 7, 13(1)(d) read with CRL.A.NO.202/2011 C/W CRL.A.NO.211/2011

Section 13(2) of the Act. The bail bonds of the accused

and the sureties shall stand discharged.

Fine amount deposited if any, by the appellants shall

be refunded to them.

Sd/-

JUDGE PKN/KSR