State vs Shri Hira Lal
2022 Latest Caselaw 9798 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 831/2002

State

----Appellant Versus Shri Hira Lal

----Respondent

For Appellant(s) : Mr. S.S. Rajpurohit, P.P.

For Respondent(s) : Mr. Chaitanya Gehlot

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 19/07/2022 Pronounced on 27/07/2022

1. This Criminal Appeal has been preferred under Section 378

Cr.P.C. claiming for the following reliefs:-

"It is, therefore, most humbly and respectfully prayed that this leave to appeal may kindly be granted, appeal may kindly be allowed, impugned judgment dt. 6-4-2002 may kindly be quashed and set aside and the accused respondent may kindly be punished and sentenced for the offence under section 7, 13 (1) (d) (2) of the Prevention of Corruption Act, 1988."

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

Public Prosecutor are as follows:-

2.1 Complainant-Nanalal Jain purchased a color television from

Ajay Jain, R/o Sindhi Bazaar, Udaipur. And that, subsequently, it

came to his knowledge that the television was a stolen good, and

therefore, he returned the same to Ajay Jain. However, a criminal

case had been lodged with respect to the theft of the television at

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Police Station, Hiranmagri and that Mr. Hiralal was the

investigating officer in the said case. And that, the investigating

officer had sent a constable to procure the presence of Nanalal

Jain to the police station, for a period about two months, but when

he did not comply, the investigating officer, on 05.12.1994,

himself reached Nanalal's shop and told him that he would be sent

to jail for purchasing a stolen television. And that, Nanalal Jain

informed that upon realizing that the T.V. he had purchased was in

fact was a stolen item, he had immediately returned the same to

the seller, from whom he had purchased it, Ajay Jain. But that, the

investigating officer Hiralal did not accept this explanation, and

told him that if he wanted to save himself he would have to pay

him a bribe of Rs. 2000/- and upon receipt of the same, he would

remove Nanalal's name from the requisite case file, regarding the

said theft of television case.

2.2 And that, on 06.12.1994, Nanalal approached the A.C.D. at

Udaipur and lodged a complaint in the form of a written report, at

Ex. P/5, before Mr. B.N. Yogeshwar, upon whose enquiry the

complainant stated that the investigating officer, Hiralal had called

the complainant to meet him that very evening with the bribe

amount of Rs. 2000/- at the Police Station, at Hiranmagri. And

that, subsequently, Mr. Liyakat Khan was assigned the task of

arranging the trap proceedings, who arranged two motbir

witnesses viz. Magniram and Vimal Kumar Patni, in whose

presence, the complainant was given the currency of Rs. 2000/-,

20 notes of Rs. 100/- denomination, and that the serial numbers

of the same were noted and the officer Mr. Khan marked his

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initials near the Ashoka Emblem of each of the notes. And that,

P.W. 5 Buddha Singh smeared the notes with phenolphthalein

powder and gave them to the complainant Nanalal, P.W. 9 with the

direction that the same were to only be handed over when asked

for by Hiralal, and that once the same was done, he was to

intimate the trap party by gesturing to them with his hand on his

head.

2.3 And that, on 06.12.1994 at about 05:25 p.m., the

complainant arrived at the Police Station at Hiranmagri and that at

about 06:25 p.m. the complainant returned to the entrance of the

said Police Station and made the agreed upon gesture, upon which

the trap party entered the Police Station and found Hiralal exiting

the A.S.I.'s office, and the complainant informed them that the

investigating officer Hiralal had made the demand for illegal

gratification of Rs. 2000/- from him and that he had kept the

same on the table in that room, upon which a table cloth was

spread, at the direction of Hiralal. And that, a constable, Bheru

Singh, entered into the room and kept the tainted currency in his

coat pocket, at the behest of Hiralal, but that when saw the trap

party approaching, he flung the tainted currency bundle from the

verandah of the A.S.I.'s office and attempted to flee the scene, but

was apprehended on the spot.

2.4 And that, the hands of both accused-respondents, respondent

no. 1 Hiralal and respondent no. 2 Bheru Singh, were tested in

sodium bi-carbonate solution and sealed in separate bottles, and

found to have come into contact with the tainted currency notes

as they turned a pinkish hue, which was corroborated by the

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motbir witness P.W.1 Magni Ram. Additionally, accused respondent

no. 2 Bheru Singh's coat and the table cloth laid out on the table,

as aforementioned, was also sent for testing. The currency notes

flung by the respondent no. 2 at the scene were collected, and

upon verification found to be the same notes as marked by the

officer Mr. Khan. Both the accused respondents were apprehended

and arrested on the spot, and were thereafter released on bail

immediately. And that, based on such recovery, a zero F.I.R. was

lodged and a Criminal Case was lodged at A.C.B. Jaipur at 212/94

for the offences under Sections 7, 13 (1) (d) and 13 (2)

Prevention of Corruption Act, 1988 against the respondents.

2.5 And that, since the respondents were both government

servants, prosecution sanction was obtained from the Special

Court, Prevention of Corruption Act Cases, Udaipur by lodging a

complaint which registered as Criminal Case No 6/95 and

subsequently after the establishment/creation of the Sessions

Court, Prevention of Corruption Act Cases, Udaipur, the same was

lodged as Criminal Case No. 61/1997.

2.6 However, during the pendency of same, respondent no. 2

Bheru Singh passed away on 31.10.1997 and on 25.07.1998 the

proceedings were dropped against him.

3. Learned Public Prosecutor submits that the learned Court

below proceeded with the trial against the accused respondent no.

1 but erred in acquitting him of all the charges against him herein,

by giving him the benefit of the doubt.

4. Learned Public Prosecutor further submits that the learned

Court below has wrongly passed the impugned judgment, and not

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rightly considered the evidences placed on record before it, and

therefore, the impugned judgment of acquittal deserves to be

quashed and set aside for the same.

5. Learned counsel for the respondent submits that Hiralal neither

made any demand for illegal gratification from the complainant

not did he accept any money from the complainant.

6. Learned counsel for the respondent further submits that

Hiralal had in fact sought the presence of the complainant, Nanalal

at the Police Station, Hiranmagri in connection with a case relating

to theft of electricity, and that there were multiple charge-sheets

filed against Nana Lal for such offences, and that the complainant

had foisted a false case upon him to avoid the same.

7. Learned counsel for the respondent also submits that when

the complainant Nanalal had kept the currency notes on the table,

he did so stating that it was money that he had to give Bheru

Singh for scrap, which Bheru Singh himself took from the table.

However, that since the complainant Nanalal had shook hands with

him, and there was a possibility that his hands touched the

currency notes on the table, which is why upon his hands being

tested, they tested positive for having come into contact with the

tainted currency notes.

8. Learned counsel for the respondent further submits that the

learned Court below has rightly passed the impugned judgment

after looking into the overall facts and circumstances of the

present case, and the evidences placed on record before it. And

that in the absence of clinching evidence pointing to the culpability

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of the accused, acquitted him by granting him the benefit of

doubt.

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

record of the case.

10. At the outset, this Court thinks it necessary and fit to keep

into consideration the observations made by the Hon'ble Supreme

Court, with regard to the gravity and seriousness of offences

under the Prevention of Corruption Act, 1988 and the catastrophic

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

society, in State of M.P. & Ors. Vs. Ram Singh (2000) 5 SCC

88.

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

"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."

11. 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 the sake

of brevity:-

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"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 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

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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 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

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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 (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

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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."

12. 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

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. 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

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of the currency notes and the clothes and/or 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/motbir 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

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

been proved, then 'it shall be presumed, unless the contrary is

proved' i.e. it is rebuttable at the instance of the accused if he is

able to justify / explain the purpose for the said demand so made,

and substantiate the same with cogent and clear evidence, to the

satisfaction of the concerned Court.

16. The same has been reinforced, time and again, by the

Hon'ble Apex Court, as is evident from the judgment rendered in

B. Noha Vs. State of Kerala and Ors. (2006) 12 SCC 277,

wherein, 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 the Hon'ble Apex Court 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."

17. Therefore, when it appears that an amount, which may

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

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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.

18. 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:-

"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."

19. This Court is also conscious of the following judgments

rendered by the Hon'ble Apex Court:-

19.1 State of Gujarat Vs. Bhalchandra Laxmishankar Dave

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

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

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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."

19.2 State of U.P. Vs. Ram Asrey 1990 Supp (1) SCC 12

wherein the Hon'ble Apex Court observed as under:-

"The appellate Court has given the following reasons for allowing the appeal of the respondent, they being:

1) There is no corroboration of the testimony of the complainant, Ambar Prasad regarding the demand of bribe by the respondent on 27.10.79.

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2) The evidence adduced by the prosecution that even on 5.11.79, the respondent demanded the bribe from Ambar Prasad in the presence of other persons without taking any precaution is not convincing.

3) There is no acceptable reason as to why Ambar Prasad who had promised to give the bribe money on 8.11.79 came even on 5.11.79 with the vigilance party.

4) Though Ambar Prasad agreed to pay Rs. 15/-, he paid only Rs. 10/-.

5) The application said to have been presented by Ambar Prasad is not found.

6) No evidence whatsoever was produced to show that Ambar Prasad required a backward class certificate for getting the scholarship in the month of November.

The sum and substance of the above reasonings go to show that there is no acceptable and clinging evidence proving that there was a demand of bribe and that the respondent accepted the amount in question as a motive or reward for doing an official act or showing a favour to Ambar Prasad in expertise of his official function.

On going through the impugned judgment of the High Court, we are of the view that the facts and circumstances of this case do not warrant interference.

In the result, the appeal is dismissed"

19.3 Ayyasami Vs. State of Tamil Nadu (1992) 1 SCC 304

wherein the Hon'ble Apex Court made the following observations:-

"The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court further expressed doubt about veracity of the witness who claimed that money was actually handed over in his presence. The High Court, however, drew an adverse inference against the appellant from the circumstance that the, bill which was delayed for unreasonable period had suddenly been passed by the appellant On an overall assessment the High Court entertained some suspicion about the credibility of the prosecution witnesses but at the same time did not find the suspicion to be strong enough to raise doubt about the

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guilt of the appellant. We agree with the learned Counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being unbelievable, the conviction of the appellant cannot be sustained. The guilt of the appellant has not been proved beyond reasonable doubt and as such the benefit must go to him."

19.4 Meena Vs. The State of Maharashtra (2000) 5 SCC 21

wherein the Hon'ble Apex Court made the following observations:-

"Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also.

The other person, who was present at the place of occurrence though cited initially as witness, was not examined by the prosecution but later was got examined as DW-1 and evidence of this person completely belies the prosecution story. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW-5, categorically admitted that even as the Inspector of Police, PW-6, arrived, the appellant gave the same version that PW-1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution. It is an obligation of judicial conscience to correct errors, where the same are manifest. The judgments of the courts below suffer from serious infirmities and manifest errors on account of unwarranted inferences liberally drawn by the courts below against the appellant, overlooking the fundamental principle of presumption of innocence of an accused till the charge leveled and his guilt is established beyond all reasonable doubt. The courts below have failed to consider the adverse impact on the prosecution case from the evidence of PW-2 and the withholding of the lady constable and Jagdish Bokade, two material witnesses.

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The materials on record in this case are not sufficient to bring home the guilt of the appellant. Consequently, the appeal is allowed. The conviction and sentence of the appellant is set aside and the fine, if any, paid shall be refunded to the appellant."

19.5 Seema Silk and Sarees and Ors. Vs. Directorate of

Enforcement and Ors. (2008) 5 SCC 580 wherein the Hon'ble

Apex Court, with regard to presumption made against the

accused, made the following observations:-

"The presumption raised against the trader is a rebuttable one. Reverse burden as also statutory presumptions can be raised in several statutes as, for example, the Negotiable Instruments Act, Prevention of Corruption Act, TADA, etc. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act. "

19.6 Hari Rudra Bhavan Vs. The State of Rajasthan R.L.W.

1982 Raj 676 decided on 12.03.1982 wherein a Coordinate

Bench of this Court, after analyzing the testimonies of witnesses,

observed as under:-

"The prosecution could not succeed in proving beyond reasonable doubt that the appellant demanded or accepted illegal gratification from Mangat Singh for payment of interest on his Jagir bonds. In the absence of any trust-worthy evidence from the side of the prosecution relating to demand and acceptance of bribe I am unable to up-hold the convictions and sentences of the appellant under Sec. 161, I.P.C. and Sec. 5(2) read with Sec. 5 (1) (d) of the Prevention of Corruption Act."

19.7 Ulfat Rai Arya Vs. State of Rajasthan 2007 CriLJ 1846

decided by a Coordinate Bench of this Court on 07.12.2006,

wherein the following observations were made:-

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"A plain reading of the above provision makes it clear that when the accused accepted the gratification, the presumption immediately comes into play that he accepted it as a motive or reward such as is mentioned in Section 161, IPC. Hon'ble the Apex Court in the case of T. Shankar Prasad's case, (2004 Cri LJ 884) (supra) held that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or for bearing to do any official act etc. if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 4 of the Act is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. In M. Narsinga Rao's case (supra) it was held that where the receipt of gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as a reward for doing the public duty. In Gulam Mahmood A. Malek's case 1980CriLJ1096 (supra) it was held that while appreciating the evidence the background of the case should not be lost sight of it was also laid down that past conduct of the complainant should not be ignored. In Suraj Mai's case (supra) it has been observed that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In Kesaram's case (supra) it has been held that when accused at the earliest disclosed the fact of receiving Rs. 100/- against the money due in the brother of the complainant and the defence version has been supported by the prosecution witnesses, the appellant has succeeded in probising the defence. In Duraisami's case (supra), it was held that when the explanation given by the accused is found to be true and genuine then case set up by the defence has to be accepted."

20. 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:-

20.1 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.

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20.2 The presumption under Section 20 of the Act of 1988,

operates against the accused, once certain foundational facts have

been established by the prosecution for the same, and the burden

of proof to rebut the same is upon the accused, and the

presumption stands unless he rebuts the same to the satisfaction

of the competent Court. The stage at which such rebuttal is made,

if through an explanation/justification, is also taken into

consideration by the competent Court.

20.3 Owing to the fact that in old cases, wherein the technology

of audio / voice recording, transcripts of conversations etc. was

not available to the prosecution, the burden of proving the

existence of a Demand rested solely in the realm of testimonies of

witnesses, and other material evidences as placed on the record

before the concerned Court.

20.4 The guilt of the accused must be proven beyond all

reasonable doubt, as is a fundamental and basic principle of

criminal jurisprudence.

21. This Court is also conscious of the judgment rendered by the

Hon'ble Apex Court in the case of Chandrappa & Ors. Vs. State

of Karnataka (2007) 4 SCC 415 wherein the Hon'ble Apex

Court laid down the following general principles regarding the

powers of an appellate Court dealing with an appeal against an

order of acquittal;

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

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate

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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 emphasize 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 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.

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

case, this Court makes the following observations:-

22.1 This Court observes that motbir witness P.W. 1 Mangi Ram

has deposed that he saw the now deceased constable, appellant

no. 2 Bheru Singh, throw the currency notes on the ground and

that when the hands of both accused persons was washed in the

sodium-bicarbonate solution, they turned a light pinkish hue.

However, when apprehended on the spot, respondent no. 1 Hiralal

stated that he did not have any case pending, with respect to

Nanalal, with him and therefore he had no reason to accept a

bribe from him. Whereas the motbir witness P.W. 2 in his cross

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examination has deposed that he did not see anyone throw the

currency notes.

22.2 The learned Court below has thus rightly inferred from the

testimonies of the motbir witnesses that it could not be

successfully proven by the prosecution beyond all reasonable

doubt that any demand for illegal gratification was made by the

accused herein.

22.3 P.W. 11 Liyakat Khan, officer in charge of the trap

proceedings, and other police officials, P.W. 4 Jitendra Kumar, P.W.

5 Buddha Singh, P.W. 6 Madan Singh, P.W. 7 Abrar all deposed

that when the complainant signalled them, the trap party entered

the Police Station, Hiranmagri premises and apprehended the

constable on the spot who threw the currency notes on the

ground, and attempted to flee the scene but was immediately

apprehended on the spot. And that, upon being apprehended, the

respondent no. 1 stated that he denied the bribe, but the

complainant had on the spot said that he was lying.

22.4 The testimony of the complainant, Nanalal is rife with

contradictions when compared with the written report submitted

by him, at Ex. P/5. In the written report, it was averred that the

demand for the bribe was made by the respondent no. 1 four

months prior to the trap proceedings, but in his testimony he

stated that the demand for bribe from the respondent no. 1 was

made multiple times, and that the original demand was made for

an amount of Rs. 5000/- at the concerned police station itself,

wherein even Ajay Kumar Jain, the seller from whom the colour

T.V. was purchased by the complainant, was also present, all of

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this is absent in the written report. Furthermore, Ajay Jain was not

present before the learned Court below as a witness to

corroborate the same.

22.5 Furthermore, the testimony of the complainant also included

statements to the effect that when the accused respondent No.1

Hiralal and now deceased respondent No.2 demanded Rs.200/-

and Rs.100/- respectively, he acquiesced. But, this is not stated in

the written report filed by him, at Ex. P/5. Neither did the

complainant state in the said report that multiple and repeated

demands of bribes were made by the accused respondents of him,

as averred by him in his testimony.

22.6 There are also inconsistencies in the version of the

complainant as to when and where the demands for illegal

gratification were made by the accused herein.

22.7 It is evident from the record that there were several criminal

cases lodged against the complainant for theft of telephone and

electricity wires.

22.8 At one instance the complainant also states that the model of

the colour television, is that of Oscar Brand, whereas, it was

originally averred that the colour television was of Videocon

Brand.

23. Moreover, the recovery of the alleged illegal gratification is

also called into question, as revealed from the testimony of the

Motbir witness PW-1 Magniram who in his cross examination

states that when Hiralal was apprehended the complainant was

also included in those persons who caught him. Therefore, there is

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a chance that the reason for which Hiralal's hands turned pinkish

hue upon being tested with the sodium bi-carbonate solution.

24. This Court, thus observes that the testimony of the

complainant itself cannot be fully believed, and in the absence of

any clinching evidence against the accused, both the demand and

recovery against the accused falls flat and hence, the learned

Court below has rightly proceeded to acquit the respondent of all

the charges leveled against them herein.

25. Resultantly, the present appeal fails and is hereby dismissed.

The impugned order of acquittal as passed by the learned Court

below is affirmed and upheld.

The respondent is on bail. He need not surrender. His bail bonds

stand discharged accordingly. Accordingly, all pending

applications, if any, stand disposed of. Record of the learned below

be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

46-Skant/-

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