1. Petitioner has filed this petition, under section 482 of the Cr.P.C, challenging the validity of the order dated 31/5/2018 passed in MJCR No. 01/14 by Ist ASJ, Vidisha and subsequent order dated 22/10/2020 passed in MJCr No. 158/20 by Special Judge, Prevention of Corruption Act, 1988 (for short “the PC Act”),Vidisha.

2. The facts of the case, in short, are as under:-

(i) Petitioner was appointed in the Rural Engineering Services Department and he was posted as Sub Divisional Officer at Sironj, District Vidisha. While discharging his official duties at Sironj, he granted administrative sanction of Rs.1,50,000/- for the construction of a cement concrete road in Village Tonk within Gram Panchayat Tiloni in the financial year 2008-2009. For the aforesaid work, the fund was allotted by a local MLA and NAREGA. The aforesaid work was being supervised by Shri R.S.Verma, Sub Engineer Janpad Panchayat Lateri vide letter dated 17/3/2009 issued by the petitioner. Shri Verma was instructed by the petitioner to carry out and complete the work as per the procedure and instructions received from higher Authorities from time to time. The Office of Executive Engineer issued a specific instruction vide letter dated 2/12/2009 to procure material through quotations in accordance with settled departmental procedure.

(ii) According to the petitioner, vide letter dated 27/1/2020, he instructed Shri R.S.Verma, Sub Engineer to stop the work of construction of the CC Road as there was no compliance of specification and departmental instructions. Despite that, contractor continued with the work and submitted bills and Form No.24 in the Office. According to the petitioner, all these bills were not presented before him by the concerned clerk. He inspected the site on 4/2/2010 and noticed that CC road had been constructed contrary to the settled norms and technical specifications issued by the department. Immediately he issued a letter dated 10/2/2010 to Shri R.S.Verma, Sub Engineer to cancel the entire work done by the contractor and get it redone as per the technical specifications. The petitioner also directed for recovery of payment from the contractor. Because of the aforesaid strict action, Sub Engineer R.S.Verma and contractor Surat Singh Raghuvanshi developed ill-will and a grudge against him and made a plan to falsely implicate him.

(iii) The contractor Surat Singh Raghuvanshi submitted a complaint to the Superintendent of Police of SPE Bhopal that the petitioner has demanded an illegal gratification of Rs.30,000/- to release the pending bills. After preliminary verification, the complaint was entertained, and a trap was organized. The complainant was called upon to arrange for currency notes to be handed over to the petitioner. According to the petitioner, he had never demanded such a bribe, therefore, such an illegal trap failed. Despite that, the Investigation Officer continued with the investigation under the provisions of S.7 of the PC Act and directed the petitioner to give his voice sample for matching with his voice recorded during the conversation with the contractor/complainant in which an illegal demand was made. The petitioner gave his voice sample on 1/7/2010.

(iv) Again after two years, vide letter dated 6/12/2012 issued by the Investigating Officer, the petitioner was called upon to give the voice sample. The first sample taken by the petitioner was sent to Central Forensic Science Laboratory, Chandigarh for comparison with the recorded conversation with the complainant, which was rejected as the voice of the petitioner was not clear and suitable for matching. It seems that because of this report, the Investigating Officer called upon the petitioner to give a fresh voice sample.

(v) According to the petitioner, during the investigation, the Executive Engineer RES Vidisha, obtained a technical report and photograph in respect of the construction of a road in question. A panchnama was prepared on 15/2/2011 and the report was submitted on 22/3/2011 pointing out various violations and deficiencies in the construction of the road, which justified the action taken by the Petitioner. It is further submitted that the petitioner fully cooperated with the Investigating Authority by remaining present as and when he was called.

(vi) After complete enquiry, collection of evidence and due satisfaction, the Investigating Officer prepared a closure report dated 31/3/2014 and presented it before the Special Judge (under the PC Act), at Vidisha. It is specifically mentioned in the closure report that the conversation nowhere confirms the demand for illegal gratification/bribe by the petitioner. However, the Investigating Officer wrongly recorded in the closure report that the petitioner had declined to give a sample of his voice, filed by him in MJCR NO. 1/14. In support of the report, the prosecution recorded the statement of the complainant who stated no objection for the acceptance of the closure report subject to payment of his pending bills.

(vii) The learned Court, vide impugned order dated 31/5/2018 rejected the closure report on the ground that the Investigating Agency failed to carry out the identification of voice on refusal to give voice sample by the petitioner. After rejecting the closure report, the learned Court returned the case diary with the direction to obtain a voice sample of the petitioner as per the law laid down by the Apex Court in Ritesh Singh Vs. State of U.P. (2013 SCC 357). According to the petitioner, the correct citation is Ritesh Sinha Vs. State of U.P. (AIR 2013 SC 1132).

(viii) In compliance with the aforesaid direction, the Investigating Officer issued notice dated 15/6/2018 to the petitioner calling him for further investigation. Petitioner came to know that the closure report submitted by the Investigating Agency has been returned.

(ix) The Investigating Officer submitted an application on 6/10/2020 before the Special Court, Vidisha seeking direction to the petitioner to give a voice sample in view of the judgment of the Apex Court in the case of Ritesh Sinha (Supra). The Special Court rejected MJCR No. 158/20 and issued notice to the petitioner to submit a reply on 13/10/2020. At that time, the coronavirus period was at a peak, therefore, the petitioner could not appear in person and sent an e-mail showing his inability to contact his counsel, as well as, to make an appearance before the Court. In the absence of the petitioner, the learned Special Judge passed the order dated 22/10/2020 directing the petitioner to give his voice sample to the concerned Police Station. Hence, this petition before this Court challenging the order dated 31/5/18 (Annexure P/6) and 22/10/2020 (Annexure P/12).

3. Shri Ajay Mishra, learned Senior Counsel appearing for the petitioner submitted that once the Investigating Officer, within his jurisdiction, after due satisfaction concluded that there is no material against the petitioner for his prosecution under S.7 of the PC Act submitted closure report before the Court, then the learned Additional Sessions Judge ought to have accepted the said report. The learned ASJ failed to appreciate the reason mentioned in the closure report that the conversation recorded between the petitioner and the complainant nowhere suggests any demand for illegal gratification by the petitioner. It is further submitted by the learned senior counsel that even if the petitioner's voice sample matches with the petitioner's voice, even the demand of the bribe cannot be proved to prosecute under section 7 of the PC Act. It is further submitted that in support of the closure report, the complainant was also examined in Court and he specifically stated that he had no objection if the closure report is accepted subject to payment for his work it means a false complaint was made against the petitioner to get his bills released illegally . In support of his contention, learned senior counsel has placed reliance on judgment of the Apex Court in the case of K.Shanthamma Vs. State of Telangana ((2022)4 SCC 574). Learned Senior Counsel further submitted that vide letter dated 10/2/2010, the petitioner had cancelled all the work and directed Shri R.S.Verma, Sub Engineer to get the job redone therefore, there was no reason for the petitioner to make a demand of Rs.4000/- for payment of pending bills. Before sending the letter, the petitioner had conducted the investigation and found that the work was not upto the standard and was of extremely poor quality. The petitioner also recommended initiation of disciplinary action against Sub Engineer Shri R.S.Verma vide letter dated 27/1/2010 written to Executive Engineer, RES, Vidisha. Considering all this material, the prosecution agency was not confident to prove the charge under section 7 of the PC Act because it is settled law that without motive there cannot be a demand for illegal gratification. The Apex Court in the case of Neeraj Dutta Vs. State (Govt. of NCT of Delhi) ((2023)4 SCC 731) has held that an allegation of demand of gratification and acceptance against a public servant is to be established beyond a reasonable doubt. The Apex Court has also held in catena of cases that acceptance and recovery of tainted money itself cannot prove the charge of gratification against the accused in the absence of any evidence to prove the demand of bribe and voluntary acceptance of money. In view of the above, Shri Mishra, learned Senior Counsel prays for quashment of the impugned orders and direction to the concerned Court to accept the closure report.

4. Shri Sankalp Sharma, learned counsel appearing for the respondents submits that though the Investigating Officer submitted closure report but the same has not been accepted by the trial Court, therefore, prosecution agency is bound to conduct further investigation to match the voice of the petitioner with the alleged conversation. If the voice of the petitioner is taken and matches with the conversation recorded with the complainant, then certainly the petitioner can be prosecuted under section 7 of the Act.

We have heard learned counsel for the parties.

5. The facts stated above are not in dispute. The letter dated 31/1/2014 submitted by D.S.P., Special Police Establishment, Lokayukt, Bhopal before the Special Judge seeking direction to close the prosecution for want of sufficient evidence, is reproduced below:

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In this letter, it is specifically mentioned that upon close scrutiny of transcript panchnama, there is no such specific demand for a bribe. Therefore, after taking voice sample, even if it matches with the alleged conversation, the prosecution agency is still of the opinion that there is no specific demand of bribe by the petitioner from the complainant. The voice in the conversation is very clear and on the basis of which transcript was prepared by the Investigating Officer. The voice of the petitioner was not clear in the voice sample, but the voice was clear in the alleged conversation. Therefore, there is no need to take further samples from the petitioner because as per the opinion of the Investigating Officer, the conversation nowhere confirms the demand for bribe by the petitioner. The learned ASJ did not examine this report submitted by the Investigating Officer carefully while rejecting the closure report.

6. Even otherwise, vide letter dated 10.2.2010, the petitioner had already issued direction to Shri R.S.Verma to cancel the work and get it redone through the contractor. All the bills had already been cancelled before so-called demand of the bribe. There was no such motive for the petitioner to demand illegal gratification from the complainant. The petitioner had already recommended action against the contractor and recommended disciplinary action against the Sub Engineer. Therefore, it appears that there was grudge against this petitioner for his false implication.

7. As per the statement of complainant, tainted money had already been returned to the prosecution agency. There is no material to show that the tainted money is still kept safely. More than 13-14 years have expired. No disciplinary action has been taken against the petitioner by the department and still he is working.

8. In view of the above discussion we are of the considered opinion that the learned courts below ought to have accepted the closure report, hence the order dated 31/5/2018 passed in MJCR No. 01/14 by Ist ASJ, Vidisha and the subsequent order dated 22/10/2020 passed in MJCR No. 158/20 are hereby quashed. The FIR registered against the petitioner under section 7 of the PC Act and further proceedings are also quashed.