State Of Rajasthan vs Rajesh Kumar
2022 Latest Caselaw 8931 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 587/2022

State Of Rajasthan, Through Pp

----Appellant Versus Rajesh Kumar S/o Bhanwar Lal Jethaniya, B/c Chhipa, R/o Kothari Mohalla, Dist. Bhilwara, The Then Patwari Patwar Halka Pashal, Teh. And Dist. Bhilwara.

                                                                ----Respondent


For Appellant(s)         :     Mr. Vikram Sharma, P.P.
For Respondent(s)        :     Mr. Bhushan Singh

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

Reserved on 01/07/2022 Pronounced on 08/07/2022

1. This Criminal Appeal has been preferred by the appellant-

State against the judgment impugned, dated 31.10.2018 whereby

the learned Sessions Court acquitted the respondent for the

charges under Section 7 and 13 (1) (d) read with Section 13 of

the Prevention of Corruption Act, 1988.

2. Brief facts of the case as placed before this Court by the

learned Public Prosecutor appearing on behalf of the Appellate-

State are that on 06.07.2009, complainant Natwar Singh S/o

Raghuveer Singh Panwar submitted a written report before the

Addl. A.C.B. Chowki, Bhilwara to the effect that his father owned

land in the village, which was situated at Arazi No. 2538 to 2599,

but that there was some error/deficiency which required to be

corrected. And that, when they sought to rectify the same, the

Halka Patwari Shri Rajesh, Patwar Mandal Pashal demanded a

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bribe of Rs. 10,000/-, which demand the complainant did not wish

to satisfy. Following the said report, trap proceedings were

arranged and during the course of the same, recovery of the

tainted currency was made from the possession of the respondent

(Rajesh Kumar), whereupon he was arrested. Subsequently, the

respondent was charge-sheeted for the offences under the

Sections 7, 13 (1) (d) and 13 (2) of the Prevention of Corruption

Act. About 17 prosecution witnesses were produced and examined

during the course of trial; after trial, vide the impugned judgment,

the respondent was acquitted.

3. Learned Public Prosecutor further submitted that the learned

Court below has erred in acquitting the respondent of the charges

so framed against him, and that despite the fact that the

respondent was caught red handed, and that as per the

verification of the demand transcription the accused called the

complainant at Gayatri Ashram and during the course of the trap

proceedings, the bribe money was recovered from the respondent.

4. Learned Public Prosecutor also submitted that the learned

Court below has failed to appreciate the fact that the motive for

the demand of the bribe amount of Rs. 10,000/- has also been

proven, the same being to make rectifications in the land records,

pertaining to the lands owned by the complainant's father.

5. On the other hand, learned counsel for the respondent

opposed the submissions made by the learned Public Prosecutor

and submitted that the learned Sessions Court has passed the

impugned judgment acquitting the respondent, after taking into

due consideration the overall facts and circumstances of the

present case, and appreciating the evidences placed on record

before it.

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6. Learned counsel for the respondent further submitted that a

false case was foisted upon the respondent, and that the learned

Court below rightly appreciated that although the recovery of the

tainted currency notes was made from the respondent, the same

was made towards a repayment of a loan advanced by the

respondent to the complainant. Furthermore, the respondent did

not in fact have any work, with respect to the complainant or his

father, pending with him nor was he in any capacity to assist the

complainant or his father in the rectification/correction of their

land records, and that the same was conveyed to the complainant.

7. Learned counsel for the respondent thus submitted that the

learned Court below has passed the impugned judgment with

cogent and logical reasoning viz. the 65B certificate, a mandatory

statutory requirement under the Indian Evidence Act of 1872 was

not produced by the prosecution in connection with call records

pertaining to the conversation between the complainant and the

accused Halka Patwari, at P/32, which were brought into evidence

before the Court, and that it would not be appropriate nor in

accordance with law, to use it as the basis to determine whether

demand for any illegal gratification was made by the accused to

the complainant or father / brother, and that for the same reason

the Court also did not consider the evidence of the recording

created using the tape recorder, as used in the trap proceedings

against the respondent herein.

8. Heard learned counsel for both parties, and perused the

record of the case.

9. This Court observes that the learned Court below sought to

understand whether an official on the post of a 'Halka Patwari'

while on duty was capable of assisting the complainant with the

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process of rectification/correction in the land record and whether

he made a demand of Rs. 10,000/- for the same, and the learned

Court below recorded the finding that under Section 136 of the

Land Revenue Act, rectifications/corrections in the land revenue

records of agricultural land can only be done by the concerned

S.D.M. and in the case of a technical/clerical error in the same,

then concerned Tehsildar has the power to rectify/correct the

same. And that, therefore, there was no work regarding the

complainant or his father, pending with the respondent, nor was

he in any capacity to fulfill the purpose for which the alleged

demand was made, as stated by the complainant.

10. This Court finds that the learned Court below, while dealing

with the issue, whether under the Indian Evidence Act, 1872, a

Section 65B certificate was required to be produced by the

prosecution for the call details of the telephonic conversation

wherein the demand for illegal gratification by the accused, the

respondent herein, was allegedly made.

Section 65B of the Act of 1872 reads as follows:-

65B. Admissibility of electronic records.

-- (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: --

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(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause

(a) of sub-section (2) was regularly performed by computers, whether--

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, --

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

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(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section, --

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation. --For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]

11. This Court thinks it necessary and fit to keep into

consideration the following observations made by the Hon'ble

Supreme Court in State of M.P. & Ors. Vs. Ram Singh (2000)

5 SCC 88, with regard to the gravity and seriousness of offences

under the Prevention of Corruption Act, 1988 and the catastrophic

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effect that such offences, if left unchecked, have on a democratic

society:

"Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignancies the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society."

12. Before delving into the case at hand, the relevant Sections of

the Prevention of Corruption Act, 1988 (as it stood then)

applicable in the present case, are reproduced below for ready

reference:-

"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

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imprisonment which shall be not less than 1[three years] but which may extend to 2[seven years] and shall also be liable to fine.

Explanation.--

(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will when serve them, be may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification." The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remuneration." The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section"

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

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person for himself or for any other person any gratification other than legal remuneration as active or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a

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consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(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

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[four years] but which may extend to 2[ten years] and shall also be liable to fine."

20. Presumption where public servant accepts gratification other than legal remuneration

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(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) or sub- section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."

13. This Court observes that, for the offences under Sections 7

and 13 sub-section (1) (d) read with Section 13 sub-section (2) of

the Prevention of Corruption Act, 1988 to be made out against the

accused, it is necessary that; the twin ingredients of a demand of

illegal gratification / bribe of remuneration; or any valuable thing,

either without consideration or a consideration which is known to

be inadequate by the accused; or for a pecuniary advantage, for

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himself or another, made by the accused or by another on his

behalf, coupled with a recovery of the said illegal gratification from

the accused, or from someone who has accepted the same on his

behalf; or if he has dishonestly or fraudulently misappropriates or

otherwise converts for his own use any property entrusted to him

or under his control as a public servant, must be proven by the

prosecution as per the facts and circumstances of each case.

13.1 It is a settled position of law that any allegation under the

aforementioned sections against an accused, if sans a demand for

any kind of illegal gratification, (hereinafter referred to as

'Demand') or a recovery of the same (hereinafter referred to as

'Recovery'), as discussed above, would result in a failure of the

prosecution to prove its case, beyond all reasonable doubt.

14. However, in case a Demand and a Recovery have been

proven before the competent Court by placing the evidence on

record, which may include, but not be limited to; audio and/or

video recording of trap proceedings, transcript of telephonic

conversation between complainant and accused, chemical testing

of the currency notes and the clothes / person of the accused, or

his conduit, by phenolphthalein powder or anthracene powder,

testimonies of complainant and/or investigating officer/shadow

witness and/or trap/panch witness and/or other witnesses, and

whether any of the witnesses have turned hostile, the accused

may rebut the same, to the satisfaction of the competent Court

and averting to the facts of the case, by providing a justification /

explanation to such demand.

15. This Court further observes, as is clear from the legislative

intention crystallised in the provision of law under Section 20 of

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the Act of 1988, that in case a demand for illegal gratification has

been proved, then it is rebuttable at the instance of the accused if

he is able to justify / explain the purpose for the said demand so

made, to the satisfaction of the Court.

16. The same was reinforced by the judgment of the Hon'ble

Apex Court in B. Noha Vs. State of Kerala and Ors. (2006) 12

SCC 277, wherein the Hon'ble Apex Court while referencing the

ratio decidendi laid down in the earlier decision of State of A.P.

v. Kommaraju Gopala Krishna Murthy (2000) 9 SCC 752

observed the following:-

"...that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification."

16.1 Therefore, when it appears that an amount, which may

appear to be a Demand made by an accused, has been passed to

the accused, then a presumption under Section 20 of the Act of

1988 is made against the accused, and the burden of proof of

rebutting the same then lies on the shoulders of the accused.

16.2 Furthermore, in Guruviah & Ors. Vs. The State (2019) 8

SCC 396 wherein the Hon'ble Apex Court referenced the ratio

decidendi laid down earlier in T. Shankar Prasad v. State of

A.P. (2004) 3 SCC 753 and also took into consideration, that

although a justification / explanation was given by the accused, it

was not offered immediately after the recovery of money but at a

belated stage, which called into question the authenticity of the

same.

Relevant portion of T. Shankar (supra) is reproduced

below:-

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"The involvement of both of the them a well-planned and cleverly managed device to systematically collect money stood sufficiently established on the evidence let in by the prosecution. Further, A-2 did not offer his explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by this Court in A. Abdul Kaffar v. State of Kerala."

17. This Court is also conscious of the following judgments

rendered by the Hon'ble Apex Court:-

17.1 In N. Vijayakumar Vs. State of T.N. (2021) 3 SCC 687,

the Hon'ble Apex Court reiterated the ratio decidendi laid down in

Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC

415 with respect to the powers of the appellate Court while

dealing with an appeal against an order of acquittal. Further

reference was made to the judgment rendered in Murugesan

and Ors. v. State through Inspector of Police (2012) 10 SCC

383 wherein the Hon'ble Apex Court held that the appellate Court

could reverse an order of acquittal passed by a Court below, only

if it finds the view to be an erroneous or perverse view, and not

merely if it finds that another view is possible while looking into

the facts and circumstances of the case. And the same, has been

consistently upheld by the Hon'ble Apex Court in multiple

judgments. (See The State of Gujarat Vs. Navinbhai

Chandrakant Joshi and Ors. (2018) 9 SCC 242 and State of

Gujarat Vs. Bhalchandra Laxmishankar Dave (2021) 2 SCC

735.)

Relevant portion of Chandrappa (supra) is reproduced as

under:-

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

2. The Cr.P.C. 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 disturb the finding of acquittal recorded by the trial court."

Relevant portion of Murgesan (supra) is reproduced as

under:-

"In other words, the reversal of the acquittal could have been made by the High Court only if the conclusions recorded by the learned trial court did not reflect a possible view. It must be emphasised that the inhibition to interfere must be perceived only in a situation where the view taken by the trial court is not a possible view. The use of the expression "possible view" is conscious and not without good reasons. The said expression is in contradistinction to expressions such

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as "erroneous view" or "wrong view" which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible.

It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court

17.2 V. Sejappa Vs. State (2016) 12 SCC 150 wherein the

Court referenced the judgment rendered in State through

Inspector of Police, A.P. v. K. Narasimhachary 2005) 8 SCC

364, wherein the following observation was made:-

"reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court."

17.3 State of Gujarat Vs. Bhalchandra Laxmishankar Dave

(2021) 2 SCC 735 wherein the Hon'ble Apex Court, while dealing

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with a case wherein the High Court had set aside the order of

conviction passed by the Court below and acquitted the accused

therein, made the following observations:-

"We have gone through the detailed judgment and order of conviction passed by the Learned Trial Court and also the evidence on record laid down by the prosecution as well as the defence. We have perused the impugned judgment and order of acquittal passed by the High Court to ascertain whether the High Court has conformed to the principles while exercising in the criminal appeal against the judgment and order of conviction. We find that the High Court has not strictly proceeded in the manner in which High Court ought to have while dealing with the appeal against the order of conviction. On perusal of the impugned judgment and order of acquittal passed by the High Court, we find that, as such, there is no re-appreciation of the entire evidence on record in detail while acquitting the Respondent - Accused. The High Court has only made general observations on the depositions of the witnesses examined.

The High Court ought to have appreciated that it was dealing with the first appeal against the order of conviction passed by the Learned trial Court. Being First Appellate Court, the High Court was required to re-appreciate the entire evidence on record and also the reasoning given by the Learned trial Court while convicting the Accused. Being the First Appellate Court the High Court ought to have reappreciated the entire evidence on record without any limitation, which might be there while dealing with an appeal against the order of acquittal passed by the Learned Trial Court. Therefore, we are of the firm opinion that the impugned judgment and order passed by the High Court acquitting the Respondent - Accused without adverting to the reasons given by the Learned trial Court while convicting the Accused and without reappreciating the entire evidence on record in detail cannot be sustained and the same deserves to be quashed and set aside. "

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18. At the cost of repetition, this Court deems it proper to

summarise the observations made by the Hon'ble Apex Court in

the aforementioned precedent laws in the following manner:-

18.1 For offences under the Sections 7 and 13 (1) (d) read with

Section 13 (2) of the Act of 1988, it is fundamental that a Demand

and Recovery of the same is proven against the accused.

18.2 The presumption under Section 20 of the Act of 1988, once

demand and recovery are proven, operates against the accused,

unless he rebuts the same to the satisfaction of the competent

Court, and whether the rebuttal was made at the appropriate

stage.

18.3 The powers of the appellate Court to reverse an order of

acquittal, under the Act of 1988, passed by the Court below, can

be done only on the ground that the view taken by the Court

below is erroneous or perverse, and not because the appellate

Court, after looking into the facts and circumstances of the case,

is inclined to take another possible view than the one taken by the

learned Court below. Furthermore, the instances in which the

appellate Court may disturb an order of acquittal, under the Act of

1988, passed by the learned Court below on any of the grounds as

enumerated in the case of Chandrappa (supra).

18.4 And that, an appellate Court may interfere with an order of

conviction, under the Act of 1988, only after a re-appreciation of

of the entire evidence on record and thereafter, if the appellate

Court finds the reasons as laid out by the Court below, in

convicting the accused, under the Act of 1988, to be bad or

unsustainable in the eye of law, then it may interfere and

accordingly, reverse the conviction into an acquittal.

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19. Now adverting to the facts and circumstances of the present

case, this Court makes the following observations:-

19.1 Recovery of the tainted currency notes, 20 notes in

denomination of Rs. 500 was made from the respondent. The

same was recovered from his possession during the trap

proceedings conducted by the concerned A.C.B. officials. And that

the notes so recovered were found to be the same notes used in

the trap, which were marked with the concerned police official's

signature near the Ashoka Emblem, and the officials had also

made note of the currency notes' serial numbers, and the same

were also smeared with phenolphthalein powder. However, it is

the claim of the respondent herein that the purse/wallet from

which the said recovery was made, did not belong to him. But,

when tested with the sodium carbonate solution, the respondent's

hands turned a pinkish hue indicating that he had in fact come in

contact with the tainted currency notes.

19.1.1 While the respondent first offered the explanation that

the money recovered from his person was given to him by the

complainant, towards the repayment of the loan which was

advanced by him to the complainant, he subsequently then

changed his stance and stated that the purse from which the Rs.

10,000 tainted currency, i.e. the 20 notes in denomination of Rs.

500 were recovered, was not his purse.

19.1.2 The recovery of the tainted currency notes has been

thus proven, and the respondent taking contradicting stances, as

revealed by his statements, and as recorded by the learned Court

below in impugned judgment, calls his innocence into question.

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19.2 However, with respect to whether the demand for any illegal

gratification was made by the respondent herein, the learned

Court below has rightly dealt with it after taking into consideration

multiple factors;

19.2.1 The learned Court below held that there was no work

pending with the Halka Patwari, pertaining to the complainant's

father's land, nor was he in any position to assist then with the

rectification/correction of the concerned land/revenue records for

their agricultural land as the same may only be done by the

concerned S.D.M. or concerned Tehsildar, although on an

individual footing may not provide much support in acquittal of the

respondent herein as it may be possible that the complainant or

his father/brother were lead or induced to believe that the

respondent - Halka Patwari may have been able to assist them,

the same is not supported by any evidence and hence further does

casts a shadow of doubt on the case of the prosecution.

19.2.2 The requirement of a certificate under Section 65B of

the Indian Evidence Act, 1872 is a statutory requirement for

admission into evidence of any information which is contained in

an electronic record, and the same has been held by the Hon'ble

Apex Court in Arjun Panditrao Khotkar Vs. Kailash

Kushanrao Gorantyal and Ors. (2020) 7 SCC 1.

Relevant portion of the said judgment is reproduced as under:-

"The reference is thus answered by stating that:

(a) Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (supra), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (supra) and the judgment dated 03.04.2018 reported as (2018) 5 SCC

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311, do not lay down the law correctly and are therefore overruled.

(b) The clarification referred to above is that the required certificate Under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate Under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as "...if an electronic record as such is used as primary evidence Under Section 62 of the Evidence Act..." is thus clarified; it is to be read without the words "Under Section 62 of the Evidence Act,..." With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.

(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till Rules and directions Under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.

(d) Appropriate Rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable Rules for the retention of data involved in trial of offences, their segregation, Rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate Rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after

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considering the report of the Committee constituted by the Chief Justice's Conference in April, 2016."

19.3 Of the twin requirements for a conviction under the

Prevention of Corruption Act, 1988, the prosecution has failed to

prove that a Demand was made by the respondent herein from

the complainant or his father/brother, and in the absence of the

same the prosecution's case fails.

19.4 In arriving at this conclusion, this Court observes that the

prosecution sought to establish that the accused Halka Patwari

made a Demand from the complainant, through the transcript of

the telephonic conversation between the accused Halka Patwari

and the complainant, however the same fails to prove the

existence of any kind of such Demand on two counts, the first

being the transcript itself does not reveal anything incriminating,

and at best, some vague presumptions may be drawn against the

accused, but the version of the prosecution absolutely collapses on

the second count, being that the Court is precluded from

considering the said transcript at all, since the prosecution failed

to fulfill the statutory requirement under the Indian Evidence Act

of 1872, of producing a Section 65B certificate along with the said

transcript. The only instance under which the same may be

circumvented is when the owner of such electronic device, being a

mobile phone in the present case, steps into the witness box and

proves that the concerned device on which the information is first

stored, owned and/or operated by him, and such is not the case in

the present appeal. The same is same is a settled and crystallised

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position in law as held by the Hon'ble Apex Court in Arjun

Panditrao Khotkar (supra).

20. This Court, therefore, finds that the learned Court below has

rightly, in accordance with the ratio decidendi laid down by the

Hon'ble Apex Court in Satyanarayana Murthy (supra) and

State through Central Bureau of Investigation Vs. Anup

Kumar Srivastava (supra) passed the impugned judgment of

acquittal after giving the benefit of doubt to the accused

respondent herein.

21. This Court, in light of the above made observations, and the

aforementioned precedent laws laid down by the Hon'ble Apex

Court, finds that the judgment dated 31.10.2018 passed by the

Trial Court deserves to be upheld.

22. This Court, therefore, finds that the impugned judgment

dated 31.10.2018, passed by the learned Court below, does not

suffer from any legal infirmity, and therefore, the same is upheld

and affirmed.

23. Consequently, the present appeal is dismissed. All pending

applications are disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

166-SKant/-

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