Narendra Kumar Vyas, J.

1. This criminal appeal preferred by the appellant under Section 374 of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 12.02.2004 passed by Special Judge, (Prevention of Corruption Act) Surguja Ambikapur in Special Case No. 1/2002 whereby the appellant has been convicted for offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and has been sentenced to undergo rigorous imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment of fine, additional RI for one year.

2. Facts of the case in brief are that complainant Vijay Kumar Soni (PW-14) was residing with his family at Kurasia Bazar for the last 12 years. On 12.05.2000 the colliery management for extension of Kurasia colliery has demolished the house of complainant situated at survey No. 325 and shifted them at Ektanagar, Godripara. An award of Rs. 1,02,000/-was awarded in favour of the complainant on 10.5.2000 out of which 10% of award amount was already paid to the complainant and 90% award amount was to be paid to Vijay Soni which was paid vide cheque No. 11671. It is alleged that after delivery of cheque, father of the complainant namely Natthulal made a complaint before SDM Manendragarh, that he was the actual owner of the house and instead of that compensation was paid to his son. On the basis of complaint, SDM Manendrgarh, initiated an enquiry and the matter was handed over to the appellant for conducting an enquiry as to who was the actual owner of the property and who has to receive the compensation amount. It is alleged that the appellant for giving favourable report in favour of the complainant had demanded Rs. 15,000/-as bribe. Ultimately, the complainant agreed to pay the amount in two installments. It is further alleged that Rs. 7,000/-was paid as first installment to the appellant on 15.05.2000 and Rs. 8,000/-was paid to him after submitting the final report. It is alleged that on 31.05.2000 at about 8.00 O'clock, on 31.05.2000 again the appellant had demanded money from the complainant and he did not want to give bribe to the appellant, therefore, he filed a written complaint (Ex.P-5) to the Superintendent of Police, Special Police Establishment Lokayukta, Bilaspur, who directed Dy. Superintendent of Police Sitaram Singh (PW-19) for registration of FIR. Thereafter, FIR (Ex.P-26) was registered against the appellant. A trap party was constituted and panchanama of Rs. 7,000/-vide (Ex.P-6) was prepared. Investigating Officer directed the complainant to produce Rs. 7000/-. He produced 14 currency notes in the denomination of Rs. 500/-. Numbers of notes were recorded in preliminary panchnama (Ex.P-6). Notes were tainted with phenolphthalein powder and reaction of sodium carbonate and phenolphthalein chemical were demonstrated. A tape recorder for recording the conversation between the appellant and the complainant was given to him so that demand of money could be recorded thereafter the complainant was directed to pay the said money on demand to the accused and give signal. Preliminary Panchnama (Ex.P-7) was prepared. In presence of the members of trap team, preparation for trap panchanama vide Ex.P-4 and the currency notes were tainted with the chemical as per the established procedure. The complainant along with the money went to the house of the appellant where money was kept under the cushion of single seater sofa and after coming out from the house of the appellant, he gave signal to the trap team and the trap team caught hold of the hands of the appellant. The fact was established by the complainant as the colour of water turned into pink when the hands of the accused were washed by the member of the trap team. But the conversation between both of them could not be recorded as TV was on condition, due to which voice could not be properly recorded in the tape recorder. Seized articles were sent for chemical analysis and presence of sodium carbonate and phenolphthalein were confirmed, hands washed solution of the accused by Forensic Science Laboratory, Sagar vide Ex.P-35 were also confirmed.

3. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code') and documents were sent for getting sanction to prosecute. After application of mind, competent authority has accorded sanction for prosecution for the offence against the accused/appellant vide Ex.P/36 on 04.07.2001 for commission of offence under Section 7 and 13(1) (d) and 13(2) of the Prevention of Corruption Act, 1988. After completion of investigation, charge sheet was filed before the Special Judge, Surguja, Ambikapur.

4. In order to bring home the guilt of appellant, the prosecution has examined as many as 21 witnesses Ramprakash Pandey (PW-1), Lower Division clerk Nandgopal Choubey (PW-2), Reader to SDO H.N.L Shrivastava (PW-3), Manager Shyam B. Choudhary (PW-4), Assistant Commercial Officer A. Tirkey (PW-5), Patwari Ramswaroop Gupta (PW-6), Assistant Inspector G.R. Shyamle (PW-7), Constable Sudhavishal (PW-8), Dy. Collector Rajendradhar Divan (PW-9), Head Constable Meenaram (PW-10), Medical Officer Dr. A.K. Agrawal (PW-11), SDO C.B. Tirkey (PW-12), Dy. Collector A. Lakda (PW-13), complainant Vijay Soni (PW-14), Constable Vijaynath Tirkey (PW-15), Superintendent of Police R.P. Singh (PW-16), AG-III, Ramdev Dwivedi (PW-17), Dy. Collector R. Ekka (PW-18), DSP Lokayukta Sitaram Singh (PW-19), AG-III Hukumchand Uday (PW-20), District and Sessions Judge T.C. Yadu (PW-21). Substantiate the charges leveled against the appellant the prosecution has exhibited the documents i.e. statement of Ramprakash Pandey (Ex.P-1), seizure memo (Ex.P-2 and Ex.P-3), Memo dated 31.05.1996 (Ex.P-4), application of complainant (Ex.P-5), Notes panchanama (Ex.P-6), Preliminary panchanama (Ex.P-7), list of seizures (Ex.P-8 to Ex.P-10), Map (Ex.P-11), Arrest panchanama (Ex.P-12), Trap panchanama (Ex.P-13), list of seizure (Ex.P-14), memo dated 31.5.2000 (Ex.P-15), Map (Ex.P-16), Jamantnama (Ex.P-17), Memo dated 31.5.2000 (Ex.P-18), Medical prescription of the appellant (Ex.P-19), allocation letter dated 16.03.2001 (Ex.P-20),Memo dated 10.10.2001 (Ex.P-21), Order dated 25.06.1999 (Ex.P-22 C), relieving order dated 01.07.1999 (Ex.P-23C) relieving report (Ex.P-24C), order dated 27.06.2000 (Ex.P-25 C), FIR (Ex.P-26) dated 05.06.2000, sanction order dated 18.02.2002 issued by government of MP (Ex.P-27), memo dated 19.6.2000 (Ex.P-28), memo dated 28.06.2000 (Ex.P-29), certified copy of service book (Ex.P-29 A and Ex.P-29 B), FIR (Ex.P-30) dated 31.08.2000, memo dated 12.06.2000 (Ex.P-31), memo dated 05.08.2000 (Ex.P-32), memo dated 06.06.2000 (Ex.P-33), list of sealed articles (Ex.P-34), report dated 07.06.2000 (Ex.P-35), sanction to prosecution dated 04.07.2001 issued by State of Chhattisgarh (Ex.P-36), list of documents (Ex.P-36 A), list of witnesses (Ex.P-36 B). The prosecution has also exhibited articles A-1 to A-8 to prove the guilt of the appellant.

5. Statement of accused/appellant has been recorded under Section 313 Cr.P.C., in which he denied the allegation leveled against him and pleaded innocence and false implication. He has also stated that earlier Nayab Tahsildar has given report in favour of Vijay Soni but SDM has given report against Vijay Soni. He has also denied signature in the bottle as well as in the notes and exhibited document statement of Shyam B. Choudhary (Ex.D-1), A. Tirkey (Ex.D-2), and Sudhavishal (Ex.D-3). The appellant has examined Ambikeshwar Singh as (DW-1).

6. Learned trial Court after appreciating the evidence, material on record has convicted the appellant vide judgment of conviction and order of sentence dated 12.02.2004 as mentioned above. Being aggrieved and dissatisfied with the aforesaid judgment of conviction & order of sentence, instant criminal appeal has been preferred by the appellant.

7. Counsel for the appellant would submit that the trial Court has failed to consider that the prosecution could not establish its case beyond reasonable doubt against the appellant. He would further submit that complainant Vijay Kumar Soni has not supported the case of the prosecution to establish the guilt of the appellant to hold that the appellant has received an amount of Rs. 7,000/-as illegal gratification from the appellant. He would further submit the trial Court ought to have considered that there is no evidence of voluntary acceptance of money by the appellant as the complainant himself has deposed in para 8 of his statement that when he offered the money, it was refused by the appellant. However in further paragraph he stated that he had seen the appellant keeping the money under the cushion of his sofa. He would further submit that there are no eye witnesses to this effect that in the fact the appellant has received the said amount from the complainant. Learned counsel for the appellant would submit that the version of the complainant regarding demand of money by the appellant in front of prosecution witness Ram Prakash Pandey (PW-1), is not supported by the statement of this witnesses as he denied that the complainant was called by the appellant and an illegal gratification was demanded by him. He would further submit that the entire story of the trap is highly suspicion being contradicted by the witnesses on various points. Learned counsel for the appellant has mainly relied upon the statement of Vijay Kumar Soni (PW-14), R.P. Singh (PW-16), DSP Sitaram Singh (PW-19), A. Tirkey (PW-5), Shyam Ji Choudhary (PW-4), Sudh Vishal (PW-8), Head constable Meena Ram (PW-10), G.R. Shyamle (PW-7) and would submit that the prosecution has not proved the demand which is essential ingredients to attract offence under Section 13(2) of the Prevention of Corruption Act. Learned counsel for the appellant to substantiate his submission has relied upon the judgments in the cases of K.K. Yadav vs. State of Chhattisgarh decided on 09.04.2012 in CRA No. 1743 of 1999, Vishal Chand Jain @ V.C. Jain vs. CBI decided on 24.12.2010 in CRL.A. No. 579 of 2005 by Delhi High Court, State Inspector Vigilance and Anti Corruption vs. K.M. Ravi 2002(Crime) Madras 3, State of MP vs. Visnu Prasad Babele 1989 SCM 376, Dalip Singh vs. State of Punjab AIR 1988 (2) Crime 554, Darshan Lal vs. The Delhi Administration (1974) 3 SCC 595, Panalal Damodar Rathi vs. State of Maharashtra 1979 (4) SCC 526 and Sitaram vs. State of Rajasthan 1975 (2) SCC 227 and would pray for quashing of order of conviction.

8. On the other hand, learned counsel for the State would oppose the submission made by counsel for the appellant and would submit that learned trial Court has categorically considered the evidence of the witnesses recorded before the trial Court and on the basis of evidence, the trial Court has recorded its finding that the appellant has demanded illegal gratification and has received Rs. 7,000/-from complainant Vijay Kumar Soni. Thus, he has committed offence under Section 13(2) of the Prevention of Corruption Act and has rightly been convicted the appellant.

9. I have heard learned counsel for the appellant and perused the records.

10. Prosecution star witness is Ram Prakash Pandey (PW-1) who has stated that as per his information the amount of compensation has already been given to complainant Vijay Kumar Soni. He has also stated that neither any money was demanded by the appellant/Tahsildar nor he went with Vijay Soni to give money to K.K. Yadav/appellant. This witness has not supported the case of the prosecution and has completely turned hostile. In his cross-examination, nothing has been brought on record on the contrary he has emphatically denied that Tahsildar has demanded and Vijay Soni has refused to give money and also denied the prosecution case completely. He has also denied that he has given statement on 13.05.2000 before the Police.

11. Nandgopal Choubey (PW-2), has admitted in the cross-examination that before stay order was passed by SDO, Manendragarh, a cheque was given to Vijay Soni. He has also admitted that in pursuance of that order of SDO, Mahendragarh dated 29.10.1999 as per Article A-1, after obtaining the certificate from Area Manager SECL, the house of complainant was demolished and 90% compensation amount was paid to him through cheque. He has also stated that letter dated 13.05.2000 has written by SDO Manendragarh which was received in the office of Tahsildar Chirmiri but he has not done any proceedings. He has also admitted that on 13.05.2000 Sub Divisional Officer, who was posted at Manendragarh had come to Chirmiri and directed the Official of State Bank of India Haldibadi Branch to stop the payment after immediate compliance of the order and send the copy of order and enclosed the receipt of the copy. He has also admitted that after 13.05.2000 no enquiry has been conducted in the office.

12. Shyam B. Choudhary (PW-4) member of trap team has stated in paragraph-27 of his examination-in-chief that to record the discussion a tape recorder was given to the complainant where TV was on and due to sound of TV, the conversation was not recorded properly. In paragraph-44 has admitted that no panchanama of tape recorder was prepared. The witness in paragraph-47 has stated that Vijay Soni has not informed to him that the appellant after counting the notes has kept the same in single seater sofa. He has also stated that in his statement in Ex.D-1 about their entry, he has not given any statement, how it has been returned, he does not know. He has also admitted that after informing by complainant Vijay Soni about keeping money under single seater sofa, a dispute was arisen. He admitted that notes were kept in the floor. The dispute was continued 5 to 7 minutes and he again stated that notes were placed in the floor near sofa. He has also stated that when he entered into the room TV was on.

13. A. Tirkey (PW-5) member of trap team, he has also stated in para-26 that due to TV was on condition, no voice was recorded in the cassette. The witnesses in paragraph-42 has admitted that complainant Vijay Soni has not informed him that accused after counting the notes has kept the notes under the single sofa. He has also stated that the complainant after coming from the room has given only signal and nothing has been informed by him. He has also admitted that he has not stated in his police statement( Ex.D-2) that the appellant has kept notes under the sofa, if police has written he did not know the reason.

14. Ramswaroop Gupta (PW-6) has prepared the Map (Ex.P-16) and has stated that the gate was covered with curtain, therefore, he did not see as to what was going on in the room. He has also stated that witness Sudhvishal was standing at about 20 feet away from the room from where position of room cannot be visible.

15. Sudhavishal (PW-8) this witness has deposed in paragraph-11 that Shri Singh Sahab has asked the accused about bribe but he has not said anything but after repeated query he agreed accept to the bribe and also admitted that he has kept the notes under the sofa. At the same time, appellant's wife has taken the notes when Singh Sahab has explained him not to interfere in official work then she had thrown the notes on the floor. The witness has denied that he has not seen the complainant giving bribe to the appellant and he has kept the same under single seater sofa.

16. Vijay Kumar Soni, (PW-14) The complainant in paragraph-8 has stated that he has told the appellant that he has brought Rs. 7,000/-but he has refused to accept the same then picked out the money from his pocket and kept on the sofa where he was sitting and told the appellant not to write the report as the house was in his name and SDM has already passed the order. After keeping the money on the sofa he tried to come out from the room then he saw that accused was keeping the money under the sofa thereafter he has given signal to the trap team. He has also admitted that TV was on and tape recorder was also switch on and whether any conversation was recorded in the tap he did not know. The witness was cross-examined and in paragraph-13 he has admitted that SDO Manendragarh has passed the order granting 90% compensation in his favour and the appellant has already given cheque of Rs. 1,00,210/-. He has also admitted that his father has given another application in which SDO Manendragarh has directed to stop payment. In paragraph-14, he has admitted that since matter is re-examined, therefore, he has taken advised from colliery leaders and also taken assistance from Ratan Jain, who was the journalist and colliery leader and if he made any complaint against the Revenue Officer then only his problem will be solved. Thereafter, he went to office of Lokayukta along with Ratan Jain, who had advised him to develop the case for bribe then only any action can be taken against the accused. The witness has also admitted that appellant has kept the money under single seater sofa, if it has not been mentioned in panchanama Ex.P-13 then he cannot say.

17. DSP Sitaram Singh (PW-19), this witness was cross-examined in paragraph-41 where he has admitted that he has seized notes which were kept under cushion but neither cushion was seized nor washed. He has also admitted that the notes were having dipped with phenolphthalein powder which comes in contact with any clothe then it will also be turned into pink. He has also admitted that neither he washed the shirt of the complainant nor it was seized.

18. The accused was examined under Section 313 CrPC in question No. 16, wherein he has stated that total 1,00,210/-was sanctioned out of which Rs. 10,000/-was granted to Vijay Kumar Soni. In question No. 26, he has specifically denied that the he had demand Rs. 15,000/-from Vijay Kumar Soni regarding submission of report. Similarly, in question No. 31, as per version of Sitaram Singh, appellant has denied that he has never demanded Rs. 15,000/-from the complainant.

19. In view of above evidence and material on record, this Court has to examine whether the finding recorded by the learned trial Court with regard to commission of offence is legal, justified or not, therefore, before adverting to the facts to the case, it is expedient for this Court to extract Section 13 of Prevention of Corruption Act, 1988, which is as under;-

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 any gratification other than legal remuneration as a motive 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 proceeding 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 one year but which may extend to seven years and shall also be liable to fine".

20.It is not in dispute that at the relevant time the Appellant was posted as a Nayab Tahsildar and to attract ingredient of Section 13 of the Prevention of Corruption Act, 1988, three essential ingredients to constitute the offence have to be examined which are (i) demand, (ii) acceptance (iii) recovery.

21.From perusal of above provisions of the Act, 1988, it is evident that the allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. Even the decision of the Constitution Bench in the case of Neeraj Dutta vs Govt. of NCT of Delhi reported in (2022) SCC Online 1724 does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, this Court has to examine whether there is any direct evidence of demand. If this Court has to reach to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand. Hon'ble the Supreme Court in case report in Neeraj (supra) has held at paragraph 74 as under:-

"74. What emerges from the aforesaid discussion is summarised as under:

(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.

(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.

(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.

(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 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 inturn 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.

(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 rebuttal by the accused and in the absence of rebuttal presumption stands.

(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 order of acquittal of the accused public servant.

(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. (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.

69. 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 and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for 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.

76. 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.

22. Learned trial Court relying upon the statement of complainant Vijay Soni (PW-14) has recorded its finding at paragraph-97 that appellant has demanded bribe and also recorded its finding that complainant has given the money which was kept under the single seater sofa. To substantiate this finding, the trial Court has also taken into consideration statement of trap witness Shyam B. Choudhary and has recorded its finding that the accused has demanded bribe and convicted him. Learned trial Court has not taken into consideration the evidence of prosecution star witnesses Ram Prakash Pandey (PW-1) who has stated that the appellant has not demanded any money or he was accompanying with the complainant to give bribe to the appellant. Nandgopal Choubey (PW-2) has also admitted that the compensation has already been paid and thereafter the matter was pending before the SDO Manendragarh, who has directed the appellant to submit the report but no proceeding in this regard has been reached to its logical end as admitted by Nandgopal Choubey (PW-2). Shyam B. Choudhary (PW-4) member of trap team has stated in paragraph-27 of his examination-in-chief that to record the conversation a tape recorder was given to the complainant where TV was on and due to sound of TV, the conversation was not recorded properly, as such there is no evidence to record that the appellant has demanded money from the complainant. Even, he admitted that the notes were kept in the floor and there is no evidence that the notes were as seized from the exclusive possession of the accused.

23. From bare perusal of the statement of A. Tirkey (PW-5) member of trap team, it is also crystal clear that the complainant has not informed him that accused after counting the notes and kept the notes under the single seater sofa which clearly established that there is no direct evidence regarding acceptance of the bribe by the appellant. From the evidence of Ramswaroop Gupta (PW-6) who has prepared the Map (Ex.P-16) it is quite vivid that there was no witness who has seen the incident took place in the room. Sudhavishal (PW-8) has deposed in paragraph-11 that Shri Singh Sahab has asked the accused about bribe but he has not said anything but after repeated query he has agreed accepting of bribe and also admitted that he has kept the notes under the sofa. This evidence should have not been relied upon by the learned trial court to convict him and in absence of any corroborative evidence adduced by the prosecution to prove his case.

24. Learned trial Court while recording a finding of demand and bribe has relied upon the evidence of Vijay Kumar Soni, (PW-14) without appreciating the entire evidence of the complainant who has stated that the appellant has refused to accept the bribe money thereafter the complainant himself kept the money under the cushion. The witness has further stated that while going from room has seen that the appellant has collected the money and kept the same in single seater sofa which also creates doubt as when a person moving towards door then it is not visible to see what is going on behind his back and even the conversation is not proved as already recorded by this Court in the earlier paragraph of this judgment. Learned trial Court while convicting the appellant has not considered paragraph-14 of his evidence wherein he has stated that if the Revenue Authority trapped then only he can get relief from ongoing enquiry proceedings, this clearly established that complainant has made an attempt to trap the appellant and for that he has adopted this procedure with Ratan Jain. This clearly reflects that the proceeding was initiated against the appellant with malafide intention to trap him in the bribe case. Further considering the fact that DSP Sitaran Singh (PW-19), was the investigating officer of the case but neither seized cushion nor washed which is essential for establishing the guilt of the appellant. Therefore, if on dipping of the hands of the Appellant in a solution of sodium carbonate colour of that solution turned into pink, that does not help the case of the prosecution. Thus, from the entire evidence adduced by the prosecution in this case, in my considered view, both demand and acceptance of bribe money are not proved. Therefore, conviction of the Appellant is not sustainable. He is entitled to get benefit of doubt.

25. In the result, the appeal is allowed. The conviction and sentence imposed upon the Appellant is set aside and he is acquitted of all the charges framed against him. The appellant is reported to be on bail. His bail bonds shall stand discharged in view of section 437-A CrPC and the fine amount deposed by the appellant shall be refunded within one month from the date of receipt of the copy of this order.