Madhya Pradesh High Court
Satish Kumar Dwivedi vs The State Of Madhya Pradesh on 7 April, 2025
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
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1 CRA-3290-2014
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 7 th OF APRIL, 2025
CRIMINAL APPEAL No. 3290 of 2014
SATISH KUMAR DWIVEDI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Anil Khare - Senior Counsel assisted by Shri A.J. Mathew -
Advocate for the appellant.
Shri Abhinav Shrivastava - Advocate for the respondent.
JUDGMENT RESERVED ON : 02.04.2025
JUDGMENT DELIVERED ON : 07.04.2025
..................................................................................................................................................
JUDGMENT
This criminal appeal has been filed by the appellant being aggrieved
by the judgment of conviction and order of sentence dated 7.11.2014 passed
by the Special Judge (Prevention of Corruption Act, 1988) Anuppur in
Special Case No. 1 of 2013 whereby the appellant has been convicted under
Sections 7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption
Act, 1988 (hereinafter to be referred to as the Act of 1988) and sentenced to
undergo R.I. for 2 years with fine of Rs. 10,000/- and R.I. for 3 years with
fine of Rs.10,000/- respectively with default stipulations. Both the sentences
have been directed to run concurrently.
2 . The facts of the case, in brief, are that a First Information Report
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(for short 'FIR) has been lodged by one Rohit Kumar Harijan at Sub Police
Station - Ram Nagar on 16.7.2012. On the basis of the said FIR, an offence
under Sections 294, 323, 506/34 of the Indian Penal Code was registered
against accused persons namely Kamli Bai and others vide Crime No. 280 of
2012. One Head Constable namely Ved Prakash Singh arrested Kamli Bai
and Rohini Jwala and thereafter they were released on furnishing bail bonds.
Another report was lodged by one Devan Ram at Police Station Bijuri vide
Crime No. 281 of 2012 and the case diary of the same was received by
constable Ved Prakash Singh for the purpose of investigation, who arrested
the accused persons therein and they were also released on furnishing bail
bonds. The case diaries of the aforesaid two cases were handed over to
Manbahor Prajapati, Assistant Sub Inspector for the purpose of investigation.
One Rohini Devi along with her husband namely Gesram Jwala filed a
complaint with Superintendent of Police, Lokayukt, Rewa on 4.8.2012
alleging that pertaining to aforesaid report dated 16.7.2012, one constable
namely Chandel from Sub Police Station Ram Nagar came to her house and
informed that there was a counter case. After 8 days, another constable from
Police Station came and informed that Rohini Devi was called by Head of
the Police Station on 3.8.2012. The complainant then went to Sub Police
Station Ram Nagar where she met the appellant, who was posted as Station
House Officer and also one constable namely Munshi Chandel. The present
appellant demanded Rs. 5000/- each for three persons for furnishing bail
bonds and also threatened that if the said amount was not given, the
complainant would be arrested. It was also alleged that they were also made
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to sign on certain papers and thereafter they were called by 5.8.2012 with an
amount of Rs.15,000/-. On the basis of the said complaint, Lokayukt
registered a case and started investigation. After due investigation, the
charge-sheet against the appellant was filed before the competent Court.
3 . The trial Court on appraisal of evidence available on record has
convicted and sentenced the appellant as mentioned hereinabove. Hence, this
appeal.
4. Learned senior counsel for the appellant submits that the trial Court
has not appreciated the oral and documentary evidence available on record in
right perspective. The trial Court has failed to appreciate that there was no
corroborating material on record to bring home the charges against the
appellant. It is contended that the complaint Ex.P-1 made by complainant
Rohini Devi to Superintendent of Police, Lokayukta, Rewa, was not
supported by the complainant Rohini Devi (PW-1) herself. In paragraph 1 of
her testimony, the complainant has clearly stated that there was demand of
money by constable namely Munshi Chandel and in paragraph 2 she further
stated that no person other than Munshi Chandel demanded money from her.
Though the witness admitted her signatures on Ex. P-1, tape recorder
transcript Panchnama Ex.P-2, her application dated 6.8.2012 Ex.P-3,
transcript Panchnama Ex. P-5 and trap panchnama Ex.P-7 but in paragraph
24 of her testimony, she stated that she was threatened by one Arvind
Shrivastava (PW-14) to sign on papers, else a case would be registered
against her. Thus, the signatures were made by the complainant on the
documents under pressure. This aspect was required to be taken-note-of by
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the trial Court, however, the findings have been arrived at by the trial Court
in complete oblivion of paragraph 24 of the testimony of Rohini Devi (PW-
1).
5 . Learned senior counsel for the appellant further contends that the
husband of the complainant namely Gesram Jwala (PW-2) has also not
supported the allegations levelled by the prosecution and he has been
declared hostile by the trial Court. The said witness also did not allege that
there was any demand of gratification by the present appellant. In Paragraph-
19 of his testimony, this witness has stated that without reading any of the
documents, he signed all the papers at the instructions of the Police in his
house. It is contended that none of the other witnesses including pocket
witness Vinod Kumar Chourasia (PW-4), has supported the allegations. It is
contended that Ved Prakash Singh (PW-6) in paragraph - 7 of his testimony
has clearly stated that neither investigation nor the procedure regarding filing
of the charge-sheet was undertaken by the present appellant. Complainant
Rohini Devi and her husband did not meet the present appellant nor they had
any conversation.
6. Thus, in the present case the most important ingredient to attract an
offence under the Act of 1988 is missing i.e. demand. It is contended that the
demand is sine qua non to bring an act within the periphery of the Act of
1988. Penal provisions under the Act of 1988 cannot be made applicable in
absence of any demand.
7. This issue has been elaborately dealt with by the Apex Court in the
case of Neeraj Dutta v. State (Govt of NCT of Delhi) - (2023) 4 SCC 731
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and the Apex Court while answering the reference clearly held that when
there is a demand and acceptance of the bribe, the offence is made out under
the Act of 1988. It is further contended that though proof of demand can be
established by circumstantial evidence but the circumstantial evidence should
be dealt with while taking into consideration the golden principles as laid
down by the Apex Court in the case of Sharad Birdhichand Sarda v. State of
Maharashtra - (1984) 4 SCC 116 . It is contended that in the present case, as
the prosecution witnesses have not supported the case of the prosecution,
hence there was no question of conviction of the appellant in absence of any
demand of illegal gratification. In such circumstances, the impugned
judgment of conviction is liable to be set aside. Learned senior counsel for
the appellant has placed reliance on N. Vijayakumar Vs. State of Tamil nadu
- (2021) 3 SCC 687; B. Jayaraj Vs. State of Andhra Pradesh - (2014) 13
SCC 55; C.M. Girish Babu Vs. CBI - (2009) 3 SCC 779; C.M. Sharma Vs.
State of Andhra Pradesh - (2010) 15 SCC 1; Ganesh Rao Vs. State of M.P.
(Criminal Appeal No. 2142 of 2006, M.K. Harshan Vs. State of Kerala -
(1996) 11 SCC 720; C.k. Damodaran Nair Vs. Govt. Of India - (1997) 9
SCC 477 and Banarasi Das Vs. State of Haryana - (2010) 4 SCC 450.
8. Conversely, the counsel for the respondent submits that the present
appeal is liable to be dismissed. The trial Court after due analysis and sifting
of evidence has rightly convicted and sentenced the appellant for the
aforesaid offences. The appellant misused his official position being a public
servant and demanded illegal gratification. Tainted money was recovered
from the appellant and ultimately the Court after appreciating the evidence
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available on record, convicted and sentenced the appellant for the aforesaid
offences. It is contended that despite the fact that the complainant Rohini
Jwala (PW-1) and her husband Gasram Jwala (PW-2) have turned hostile but
they did not deny their signatures on the complaint Ex. P-1, tape recorder
panchnama (Ex. P-2), second complaint Ex. P-3, tape recorder sealing
panchnama (Ex. P-4), transcript panchnama (Ex. P-5), preliminary
proceedings panchnama (Ex.P-6) and trap panchnama (Ex.P-7). It is
submitted that Exs. P-1, P-3, P-5, P-6, P-11 and P-12 along with the
testimonies of independent witnesses Dr. Shiv Kumar Dubey (PW-3) and Dr.
Vinod Chourasiya (PW-4) demonstrate the demand of illegal gratification
made by the appellant. It is further contended that the trial Court has taken
into consideration the aspect that Arvind Shrivastava (PW-14) has supported
the factum of seizure of tainted money and this aspect has also been dealt
with elaborately by the trial Court in paragraphs 60, 61 and 62 of the
impugned judgment. It is also contended that there is statutory presumption,
which was required to be rebutted by the appellant, however, there is utter
failure on the part of the appellant to rebut the same. There was seizure of
currency notes worth Rs. 10,000/- smeared with phenolphthalein powder and
a perusal of FSL draft Ex. P-42 and FSL Report Ex. P-44 also demonstrate
presence of sodium bicarbonate and phenolphthalein powder from the tainted
currency notes from the appellant and therefore, the trial Court has rightly
convicted the appellant for the aforesaid offences. Reliance has been placed
on the decision of the Apex Court in State of Bihar Vs. Basawan Singh -
1958 SCC OnLine SC 64l; Ramesh Harijan v. State of U.P.- (2012) 5 SCC
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777; Goverdhan and another Vs. State of Chhattisgarh - 202 5 SCC Online
69 and Yakub Abdul Razak Memmon Vs. State of Maharashtra - (2013) 13
SCC 1. Reliance has also been placed on the decision of Gwalior Bench of
this Court in Manmohan Singh Vs. State of M.P. (Criminal Appeal No. 2713
of 2021).
9 . Learned senior counsel for the appellant in rejoinder arguments
submits that the judgment of Neeraj Datt (supra) has also been referred by
the Apex Court in its subsequent decision in Jagtar Singh Vs. State of Punjab
(Criminal Appeal No. 2136 of 2010 decided on 23.3.2023. Senior Counsel
further contends that when the demand is not proved there exists nothing to
implicate an accused under Sections 7, 13(1)(d) of the Act of 1988. It is
further contended that when the demand is not proved, the proof of
acceptance loses its foundation. To bolster the aforesaid contention, reliance
has been placed on the decisions of the Apex Court in M.R. Purushotham
Vs. State of Karnataka - (2015) 3 SCC 247 and N. Sunkanna Vs. State of
Andhra Pradesh - (2016) 1 SCC 713 and also on a decision of Division
Bench of this Court in Sanjay Kumar Vs. State of M.P. passed in Criminal
Appeal No. 1397 of 2005 decided on 8.12.2009.
10. No other point is argued or pressed by the counsel for the parties.
11 . Heard the submissions advanced on behalf of the parties and
perused the record.
12. In the present case, the allegation against the present appellant is
that he demanded and accepted illegal gratification of Rs. 10,000/- from the
complainant under the threat that if the said amount is not paid, the
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complainant would be apprehended.
13. To deal with the aforesaid contentions so advanced by the counsel
for the parties, if the record is perused meticulously, it would reveal that the
complainant in her complaint Ex. P-1 has stated that she and her mother
namely Kamli Bai had gone to Sub Police Station Ram Nagar where the
appellant and a constable namely Munshi Chandel asked her to give
Rs.5000/- each for three persons for the purpose of execution of bail bonds
and thereafter it was said that they were called to Police Station by 5.8.2012
with a sum of Rs.15,000/-. The relevant part of Ex. P-1 is reproduced as
under:-
----------------म तथा मेर माँ तथा भाई
थाने नह गए । कल दनांक 03/08/2012
को म तथा मेर माता कमली बाई ात: 10
बजे उपथाना- रामनगर गये तथा थाना
भार थानेदार एस. के. वेद तथा मुश
ं ी
चंदेल से िमले तो मुश
ं ी चंदेल तथा थानेदार
मुझसे एवं मेर माँ से कहे क तु हारे
खलाफ कोतमा यायालय म चालान पेश
करना है अपनी जमानत मुचलका भरवा लो
तीन ल ग को 5000/- 5000/- (पांच-पांच
हजार पये) लगेगा नह तो िगर तार कर
यायालय म पेश कर दगे जेल जाना पड़े गा ।
तथा धमक दये । कुछ कागज म हमार
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द तखत करवाये है तथा दनॉंक
05/08/2012 तक 15000/- (पं ह हजार
पये) लेकर तीन लोग को बुलाया है । म
और मेर माँ वापस लौटकर मने अपने पित
गेसराम वाला को पूर बात बतायी ।
उपथाना- रामनगर के थाना भार
एस.के. वेद तथा थाने के मुश
ं ी चंदेल मुझसे
तथा मेर माँ से 15000/- पये र त मांग
रहा ह। म र त नह दे ना चाहती हू ँ अपने
पित के साथ आकर िशकायत कर रह हू ँ ।--
----
14. A scrupulous scrutiny of the aforesaid complaint (Ex. P-1) reveals
that a demand was made from the mother of the complainant namely Kamli
Bai of Rs. 5000/- each for three persons for the purpose of furnishing bail
bond and there is another allegation that they were asked to come by
5.8.2012 with a sum of Rs. 15,000/-. The complaint Ex.P-1 does not specify
as to who had made the aforesaid demand of Rs.15,000/-. It is further
perceptible from the aforesaid extract of the complaint that Rs.15,000/- were
demanded for execution of bail bonds. Complainant Rohini Devi (PW-1)
was brought in the witness box and she has turned hostile. In paragraph 2 of
her testimony, she admitted that she had signed Exs. P-1 to P-7. However, in
her entire testimony she did not level any allegation against the present
appellant as regards demand of illegal gratification and in paragraph 2 itself
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she stated that apart from constable Munshi Chandel, no one else demanded
any gratification. In Paragraph 24 of her testimony, she stated that she was
made to sign all the documents by Arvind Shrivastava (PW-14), who had
threatened the complainant that if she would not sign on the papers, a case
would be registered against her. Gesram Jwala (PW-2), husband of the
complainant has also turned hostile. He has also stated in similar manner that
he was made to sign all the documents by police officials. There was failure
on the part of the prosecution to prove the transcript of conversation and the
trial Court itself in paragraph 52 has observed that the transcript panchnama
(Ex. P-5) has already lost its value in the present case. The testimonies of the
other witnesses also do not contain any allegation against the present
appellant. Dr. Shiv Kumar Dubey (PW-3), who is stated to be the pocket
witness, also in paragraph 24 of his testimony stated that he was the witness
in three trap cases and, therefore, he was known to Arvind Shrivastava (PW-
14). Similarly another pocket witness namely Vinod Chourasia (PW-4)
though has supported the process undertaken at the time of trap, however, in
paragraph 16 of his testimony, there is omission and as per this witness, upon
being informed by the complainant, he came to know that voices in the
conversation were of complainant and the appellant. It is further stated by
this witness in paragraph 21 that in his presence on 8.8.2012, Gesram Jwala,
who was the husband of the complainant, did not give any money to the
present appellant. The testimony of Ved Prakash Singh (PW-6) is important,
particularly paragraph 7 thereof wherein it was stated that the entire process
of investigation as well as filing of challan was undertaken by him and
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Manbahor Prajapati, ASI and none of the said proceedings were carried out
by the present appellant. He further ventured upon to state that as per his
knowledge, the complainant and her husband did not meet the appellant nor
had any conversation regarding the alleged transaction. Manbahor Prajapati,
ASI (PW-8) also stated in paragraph 2 of his testimony that in both the
aforesaid two criminal cases neither investigation nor process of filing of
charge-sheet was undertaken by the present appellant.
1 5 . From a cumulative analysis of the aforesaid testimonies, the
foremost question which requires consideration in the present case is,
whether there is any demand of illegal gratification by the appellant.
16. In the case of B. Jayaraj Vs. State of A.P. - (2014) 13 SCC 55 , an
issue came up for consideration as to, whether mere recovery of tainted
currency notes itself is enough to bring an offence under Section 7 of the Act
of 1988 or not? The Apex Court held in paragraph - 8 as under:-
"8. In the present case, the complainant did not support
the prosecution case insofar as demand by the accused
is concerned. The prosecution has not examined any
other witness, present at the time when the money was
allegedly handed over to the accused by the
complainant, to prove that the same was pursuant to any
demand made by the accused. When the complainant
himself had disowned what he had stated in the initial
complaint (Ext. P-11) before LW 9, and there is no
other evidence to prove that the accused had made any
demand, the evidence of PW 1 and the contents of Ext.
P-11 cannot be relied upon to come to the conclusion
that the above material furnishes proof of the demand
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allegedly made by the accused. We are, therefore,
inclined to hold that the learned trial court as well as the
High Court was not correct in holding the demand
alleged to be made by the accused as proved. The only
other material available is the recovery of the tainted
currency notes from the possession of the accused. In
fact such possession is admitted by the accused himself.
Mere possession and recovery of the currency notes
from the accused without proof of demand will not
bring home the offence under Section 7. The above also
will be conclusive insofar as the offence under Sections
13(1)(d)(i) and (ii) is concerned as in the absence of any
proof of demand for illegal gratification, the use of
corrupt or illegal means or abuse of position as a public
servant to obtain any valuable thing or pecuniary
advantage cannot be held to be established."
17. I n P. Satyanarayana Murthy Vs. State of A.P. - (2015) 10 SCC
152 , again the identical issue came up for consideration and the Apex Court
in paragraph - 23 held as under:-
"2 3 . The proof of demand of illegal
gratification, thus, is the gravamen of the
offence under Sections 7 and 13(1)(d)(i) and
(ii) of the Act and in absence thereof,
unmistakably the charge therefor, would fail.
Mere acceptance of any amount allegedly by
way of illegal gratification or recovery
thereof, dehors the proof of demand, ipso
facto, would thus not be sufficient to bring
home the charge under these two sections of
the Act. As a corollary, failure of the
prosecution to prove the demand for illegal
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gratification would be fatal and mere
recovery of the amount from the person
accused of the offence under Section 7 or 13
of the Act would not entail his conviction
thereunder."
18. Before the Apex Court in the case of Neeraj Datta (supra) vide
order dated 27.8.2019 following question of law was referred to the larger
Bench:-
"3. Noting the divergence in
the treatment of the evidentiary
requirement for proving the offence
under Sections 7 and 13(1)(d) read
with Section 13(2), Prevention of
Corruption Act, 1988, the Court
referred the following question of a
law for determination by a larger
Bench:
'The question whether in the
absence of evidence of
complainant/direct or primary
evidence of demand of illegal
gratification, is it not permissible to
draw inferential deduction of
culpability/guilt of a public servant
under Section 7 and Section 13(1)
(d) read with Section 13(2) of
Prevention of Corruption Act, 1988
based on other evidence adduced by
the prosecution.:
19. The aforesaid question of law was dealt with elaborately by the
Apex Court and the Apex Court answered the reference as under:-
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"88. What emerges from the aforesaid
discussion is summarised as under:
88.1.(a) Proof of demand and acceptance
of illegal gratification by a public servant as a
fact in issue by the prosecution is a sine qua
non in order to establish the guilt of the
accused public servant under Sections 7 and
13(1)(d)(i) and (ii) of the Act.
88.2.(b) In order to bring home the guilt
of the accused, the prosecution has to first
prove the demand of illegal gratification and
the subsequent acceptance as a matter of fact.
This fact in issue can be proved either by direct
evidence which can be in the nature of oral
evidence or documentary evidence.
88.3.(c) Further, the fact in issue,
namely, the proof of demand and acceptance of
illegal gratification can also be proved by
circumstantial evidence in the absence of direct
oral and documentary evidence.
88.4.(d) In order to prove the fact in
issue, namely, the demand and acceptance of
illegal gratification by the public servant, the
following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe
giver without there being any demand from the
public servant and the latter simply accepts the
offer and receives the illegal gratification, it is
a case of acceptance as per Section 7 of the
Act. In such a case, there need not be a prior
demand by the public servant.
(ii) On the other hand, if the public
servant makes a demand and the bribe giver
accepts the demand and tenders the demanded
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gratification which in turn is received by the
public servant, it is a case of obtainment. In the
case of obtainment, the prior demand for
illegal gratification emanates from the public
servant. This is an offence under Section 13(1)
(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above,
the offer by the bribe giver and the demand by
the public servant respectively have to be
proved by the prosecution as a fact in issue. In
other words, mere acceptance or receipt of an
illegal gratification without anything more
would not make it an offence under Section 7
or Section 13(1)(d), (i) and (ii) respectively of
the Act. Therefore, under Section 7 of the Act,
in order to bring home the offence, there must
be an offer which emanates from the bribe
giver which is accepted by the public servant
which would make it an offence. Similarly, a
prior demand by the public servant when
accepted by the bribe giver and in turn there is
a payment made which is received by the
public servant, would be an offence of
obtainment under Section 13(1)(d) and (i) and
(ii) of the Act.
88.5.(e) The presumption of fact with
regard to the demand and acceptance or
obtainment of an illegal gratification may be
made by a court of law by way of an inference
only when the foundational facts have been
proved by relevant oral and documentary
evidence and not in the absence thereof. On the
basis of the material on record, the Court has
the discretion to raise a presumption of fact
while considering whether the fact of demand
has been proved by the prosecution or not. Of
course, a presumption of fact is subject to
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rebuttal by the accused and in the absence of
rebuttal presumption stands.
88.6.(f) In the event the complainant
turns 'hostile', or has died or is unavailable to
let in his evidence during trial, demand of
illegal gratification can be proved by letting in
the evidence of any other witness who can
again let in evidence, either orally or by
documentary evidence or the prosecution can
prove the case by circumstantial evidence. The
trial does not abate nor does it result in an
order of acquittal of the accused public servant.
88.7.(g) In so far as Section 7 of the Act
is concerned, on the proof of the facts in issue,
Section 20 mandates the court to raise a
presumption that the illegal gratification was
for the purpose of a motive or reward as
mentioned in the said Section. The said
presumption has to be raised by the court as a
legal presumption or a presumption in law. Of
course, the said presumption is also subject to
rebuttal. Section 20 does not apply to Section
13(1)(d) (i) and (ii) of the Act.
88.8.(h) We clarify that the presumption
in law under Section 20 of the Act is distinct
from presumption of fact referred to above in
point (e) as the former is a mandatory
presumption while the latter is discretionary in
nature."
89. In view of the aforesaid discussion
and conclusions, we find that there is no
conflict in the three-Judge Bench decisions of
this Court in B. Jayaraj [B. Jayaraj v. State of
A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri)
543] and P. Satyanarayana Murthy [P.
Satyanarayana Murthy v. State of A.P., (2015)
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10 SCC 152 : (2016) 1 SCC (Cri) 11] with the
three-Judge Bench decision in M. Narsinga
Rao [M. Narsinga Rao v. State of A.P., (2001)
1 SCC 691 : 2001 SCC (Cri) 258] , with regard
to the nature and quality of proof necessary to
sustain a conviction for the offences under
Sections 7 or 13(1)(d)(i) and (ii) of the Act,
when the direct evidence of the complainant or
"primary evidence" of the complainant is
unavailable owing to his death or any other
reason. The position of law when a
complainant or prosecution witness turns
"hostile" is also discussed and the observations
made above would accordingly apply in light
of Section 154 of the Evidence Act. In view of
the aforesaid discussion, we hold that there is
no conflict between the judgments in the
aforesaid three cases.
90. Accordingly, the question referred
for consideration of this Constitution Bench is
answered as under:
In the absence of evidence of
the complainant (direct/primary,
oral/documentary evidence) it is permissible to
draw an inferential deduction of
culpability/guilt of a public servant under
Section 7 and Section 13(1)(d) read with
Section 13(2) of the Act based on other
evidence adduced by the prosecution."
20.The Apex Court in paragraph 88.1 has held that p roof of demand
and acceptance of illegal gratification by a public servant as a fact in issue by
the prosecution is a sine qua non in order to establish the guilt of the accused
public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. The Apex
Court further held that the prosecution has to first prove the demand of illegal
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gratification and subsequent acceptance thereof, which can be proved either
by direct or oral or documentary evidence. The proof of demand can also be
proved by circumstantial evidence in absence of oral or documentary
evidence. The Apex Court in Para 88.4(d)(i) further discussed the eventuality
that if there is an offer to pay by the bribe-giver without there being any
demand from the public servant and the latter simply accepts the offer and
receives the illegal gratification, it is a case of acceptance as per Section 7 of
the Act of 1988. In such a case, there need not be a prior demand by the
public servant.
21. In the present case, at the cost of repetition, if the testimony of the
complainant (PW-1) is examined in the light of the aforesaid decision of the
Apex Court in Neeraj Datta (supra) , it would reveal that in paragraph 1 of
her testimony, this witness stated that one constable of Police, whose name
was not recollected by her, had demanded Rs. 15,000/-. In paragraph 2, she
has stated that apart from the said constable, no one demanded any money.
Nowhere in her entire testimony, this witness stated that the present appellant
had demanded money from her. At this juncture, it is also important to take
note that in paragraphs 21 and 22 of testimony of the complainant, she has
stated that Head Constable Munshi Chandel and one sipahi namely Sant
Bahadur used to demand money from her and her husband and also used to
threaten them. Apart from other two persons, no other Police Official of the
concerned Police Station demanded any money. This witness in paragraph
24 has further stated that she was made to sign all papers by Arvind
Shrivastava (PW-14). If the testimony of complainant Rohini Devi (PW-1) is
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placed at juxtaposition with her complaint Ex.P-1, it would reveal that the
conversation had taken place between constable Munshi Chandel and the
present appellant and the mother of the complainant namely Kamli Bai. Ex.
P-3, which is another complaint made by the complainant states that on
5.8.2012 she had gone to the house of the present appellant and met her at
around 1:30 PM in the noon and during course of conversation she stated
that the appellant demanded Rs. 14000/- to file challan in the Court. The said
conversation according to this witness was recorded in the tape recorder. The
demand made on 5.8.2012 as per Ex.P-3 has not been proved by the
prosecution, which is evident from paragraph 52 of the judgment of the trial
Court. As there was failure on the part of the prosecution to prove transcript
panchnama, therefore, to arrive at the findings as regards conviction, the trial
Court precisely relied upon the complainant contained in Ex.P-1 and other
documents which were signed by the complainant and her husband. Ex. P-1
contains the allegation of demand of illegal gratification from the
complainant and the mother of the complainant namely Kamli Bai and Kamli
Bai, who was the mother of the complainant has not been examined by the
prosecution. Therefore, undisputedly in the present case so far as demand is
concerned, the prosecution has failed to prove beyond reasonable doubt that
there was any demand made by the appellant. It was the bounden duty of the
prosecution to prove the demand beyond reasonable doubt.
22. So far as the factum of acceptance of bribe is concerned, to deal
with the same, it is important to take into consideration the testimony of Dr.
Shiv Kumar Dubey (PW-3). As per this witness, currency notes smeared
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with phenolphthalein powder were handed over to the complainant and as
per the case of the prosecution, the said currency notes were handed over to
the present appellant and the appellant at that time was having lunch and the
currency notes were kept by him below a newspaper. This witness in
paragraph 9 of his testimony stated that the appellant was having lunch/meal
using his right hand but further stated that his both the hands were dipped in
Sodium Carbonate solution.
2 3 . If the testimony of Dr. Shiv Kumar Dubey (PW-3) is perused
scrupulously, it reveals that as per this witness, the appellant was having
lunch using his right hand and thereafter his both the hands were dipped in
the sodium carbonate solution. So far as food particles on currency notes are
concerned, there is no document on record to establish that at the time of
having lunch, the appellant received the said money and kept the same
beneath the newspaper. It is also not the case of the prosecution that after
receiving the said amount, the same was kept by the appellant in his pocket.
The testimonies of Dr. Shiv Kumar Dubey (PW-3) and Arvind Shrivastava
(PW-14), if are subjected to close scrutiny, as per the law laid down by the
Apex Court in 88.4(d)(i) in the case of Neeraj Datt (supra) , there has to be an
offer to pay the bribe and acceptance there of becomes punishable, reveal
that when a public servant simply accepts an offer and receives gratification,
then it is a case of acceptance as per Section 7 of the Act of 1988 and in such
a case there need not be a prior demand by the public servant. Secondly, if
there is demand of gratification, Section 7 of the Act of 1988 comes into
operation.
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24. In the present case, the aforesaid eventualities do not exist as there
was no offer by the complainant to the present appellant. It is not the case of
the complainant or any of the prosecution witness that there was offer to pay
bribe in absence of any demand. From the very threshold, it was the case of
the prosecution that there was demand of illegal gratification by the appellant
and as such it can be held safely that firstly neither there was any offer by the
complainant to pay the bribe nor there was any demand at the behest of the
present appellant for illegal gratification. The aforesaid analysis clearly
reveals that as the requisite ingredients of Sections 7 and 13(1)(d) are not
fulfilled in the present case, in the considered view of this Court, the
conviction of the appellant under aforesaid offences is unsustainable.
2 5 . Resultantly, the appeal is allowed . The impugned judgment of
conviction and order of sentence dated 7.11.2014 passed by the Special
Judge (Prevention of Corruption Act, 1988) Anuppur in Special Case No. 1
of 2013 is set aside. The appellant is acquitted of the offence under Sections
7, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,
1988 (hereinafter to be referred to as the Act of 1988).
26. The appellant is on bail, his bail bonds and surety bonds stand
discharged.
27. Let a copy of this judgment be sent to the trial Court along with the
record for information and necessary action.
(MANINDER S. BHATTI)
JUDGE
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PB
