Deepak Maheshwari, J This appeal has been preferred on behalf of accused Sharvan Lal to question the legality of the judgment dated 13.9.2007 passed by the learned Judge, Designated Court for Rajasthan, Ajmer, whereby the learned trial judge recorded conviction against the accused for the offence under Sections 7, 13(1)(d)(ii) r/w 13(2) of the Prevention of Corruption Act, 1988 ( the of 1988).

2. Heard learned counsel for the accused-appellant as also learned Public Prosecutor and perused the material available on record.

3. Briefly stated, the facts giving rise to the appeal are that complainant Bhagwan Singh lodged a complaint on 25.5.2000 in Anti Corruption Bureau, Ajmer alleging therein that accused Sharvan Lal Patwari handed over a notice to him on 24.5.2000 issued in Case No.87/2000 and demanded a sum of Rs.25,000/- from him for getting bore well of Khasara No.1074 merged in Khasara No.1167. He threatened the complainant that otherwise electric connection of bore well would be disconnected.

He also stated that the matter would be decided as per his wishes. After verifying the facts mentioned in the report, trap proceeding was conducted and accused was caught red handed on 25.5.2000 with tainted money of Rs.3,500/-. After due investigation, charge-sheet was filed for the offences aforesaid.

4. Learned trial court framed charges for the offences under Sections 7, 13(1)(d) r/w 13(2) of the of 1988.

The accused denied the charges and claimed trial. As many as six witnesses were examined on behalf of the prosecution and documentary evidence was also produced in support of the prosecution case. The accused was examined under Section 313 Cr.P.C., wherein he denied the prosecution evidence. He also got seven witnesses examined and produced number of documents in his defence. After hearing both the parties, learned trail court decided the matter in the manner aforesaid.

5. Learned counsel appearing for the accused has challenged the judgment on many grounds. His submission is that learned trial court has based the conviction against the accusedappellant on the evidence given by the complainant PW-4 Bhagwan Singh. Learned trial court has held that evidence of the complainant is corroborated by the transcription memo Ex.-P/10, but it has failed to appreciate that there was inimical relations between the complainant and accused. For this reason only the complainant has been falsely implicated in this case. Learned counsel has stated that the accused, while working on the post of Patwari, made a report against the complainant to tehsildar regarding encroachment on the land of Khasara No.1074, alleging it a naala charagah land. On the basis of that report, notice was issued to the complainant in Revenue Case No.87/2000. He further recommended to tehsildar to acquire the bore well of complainant in the public interest. Because of this previous enmity, complainant Bhagwan Singh has falsely implicated him in this case.

5. It has also been argued by learned counsel that the transcription memo Ex.-P/10 was not worthy to place reliance by the learned trial court. The voice of the accused recorded in the cassette of which descript was prepared as Ex.-P/10, was not identified. The cassette was not sealed on the spot, it was not proved by the prosecution evidence that there was no chance of making any interpolation therein. The evidence with regard to keeping the cassette intact was not proved. His argument is that the conditions laid down by the Honble Supreme Court in the case of Ram Singh & Ors. v. Col. Ram Singh, 1986 AIR(SC) 3 were not complied with. Thus, learned trial court has erred in this regard, while seeking corroboration of the evidence of complainant PW-4 by Ex.P/10.

6. Learned counsel has also strenuously argued that mere recovery of money is not enough to fasten the liability upon the accused of the alleged offences. The fact of demand made by the accused and voluntary acceptance of tainted money are sine qua non to prove the alleged offence. These two parameters have not been met out by the prosecution in the case in hand. Learned trial court has not appreciated the defence evidence, which was adduced to prove that the accused was under the influence of intoxication when the tainted money was allegedly recovered from him. He had not voluntarily accepted the money but it was forcibly put in his pocket by the complainant alongwith pouches of liquor. The accused did not demand the money. It was not within his competence to merge the land of Khasara No.1074 with that of Khasara No.1167. Only tehsildar was competent in this regard, who was superior to him. No matter was pending with the accused at the time when demand was allegedly made.

7. Learned counsel has also argued that even the recovery of tainted money has not been proved beyond doubt by the prosecution evidence. Khubi Ram which is stated to be present at the time of recovery was not examined by the prosecution. On the contrary, he has been examined in defence evidence as DW-5, who has not corroborated the prosecution story. In light of these arguments, learned counsel has prayed that the appeal may kindly be allowed and the judgment impugned may be quashed and setaside.

8. Learned counsel has placed reliance the following judgments in support of his arguments :-

(I)- Ram Singh & Ors. v. Col. Ram Singh, 1986 AIR(SC) 3.

(II)- Panalal Damodar Rathi v. State of Maharashtra, 1979 AIR(SC) 1191.

(III)- Prabhat Kumar v. State of Jharkhand, 2014 14 SCC 516 [LQ/SC/2010/937] .

(IV)- Ram Prakash Arora v. State of Punjab, 1973 AIR(SC) 498.

(V)- State of Punjab v. Madan Mohan Lal Verma, 2013 CrLR 914 (SC).

9. Learned Public Prosecutor has vehemently opposed the prayer made by learned counsel for the accused-appellant. His arguments are that the prosecution has proved the case against the accused beyond reasonable doubt. Defence evidence that the accused was under the influence of intoxication has been successfully negated by the prosecution. This is proved beyond reasonable doubt that the accused demanded money from the complainant on the basis of notice issued to him in Case No.87/2000. The amount of Rs.15,000/- was settled against the demand of Rs.25,000/- and the accused was caught red handed with the tainted money of Rs.3,500/-. The plea of previous enmity between the accused and complainant is groundless as the proceedings initiated against the complainant on the basis of report submitted by the accused had already been concluded. Learned Public Prosecutor submits that all the ingredients of the offence alleged were proved against the accused beyond reasonable doubt. Learned trial court has elaborately discussed all the aspects in the judgment impugned which does not suffer from any infirmity. Learned Public Prosecutor thus submits that the appeal is likely to be dismissed, being devoid of any merits.

10. I have scanned the judgment impugned in light of the arguments advanced by rival sides and also in view of the material available on record.

11. So far as the question of recovery of Rs.3,500/- from accused-appellant Sharvan Lal is concerned, this factual aspect has not been agitated by learned counsel for the appellant. Further, in light of the statements given by PW-1 Nand Singh, PW-3 Mahendra Singh, PW-4 Bhagwan Singh, PW-5 Chandra Sen Singh and PW-6 Ramniwas, it is proved beyond doubt that on 25.5.2000 at about 8:00 p.m. amount of Rs.3,500/- was recovered from the pocket of the trousers which the accused was wearing. Learned counsel for the accused has raised this objection that the money was forcibly put into the pocket of accused when he was under the influence of alcohol. Learned counsel has vehemently argued that the money was not voluntarily accepted by the accused. He has drawn attention of the Court to the observations made by the Honble Supreme Court in State of Punjab v. Madan Mohan Lal Verma in this regard. In the above case, the Honble Supreme Court has observed as follows :-

"7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification.

Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.

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12. He has also placed reliance on Prabhat Kumar Gupta v. State of Jharkhand , wherein it has been observed by the Honble Supreme Court as follows :-

"17. In Subbu Singh the prosecution had proved that the money was demanded as bribe and the same as received by the accused and in view of Section 20 of theit was observed that in such circumstance, the accused is to establish that the amount was not received as bribe. As we have observed earlier the prosecution has not been able to prove that the money was received by the appellant as bribe and, therefore, the presumption as contemplated under Section 20 of thewould not raise."

13. Learned counsel submits that neither the demand nor voluntary acceptance of money has been proved beyond reasonable doubt in this case by the prosecution.

14. On perusal of the prosecution evidence, no other witness except the members of trap party and the complainant is found to have corroborated the fact of demand having been made by the accused. PW-1, PW-3 & PW-5 are members of the trap party, PW-4 Bhagwan Singh is complainant himself, PW-6 is incharge of trap party. Besides these witnesses, no other independent witness has been examined by the prosecution to prove that the demand was made by the accused.

15. In this fact situation, the judgment relied upon by learned counsel rendered by the Honble Supreme Court in Ram Prakash Arora v. State of Punjab , the accusedappellant becomes liable to be acquitted of the offences charged against him. Though, there were some different set of circumstances in Ram Prakashs case, but the common feature in that case and in the matter in hand is that no independent witness was examined to corroborate the demand made by the accused. Similarly, in State of Punjab v. Madan Mohan Lal Verma , the Honble Supreme Court has held that mere receipt of the amount by the accused is not sufficient to fasten guilt in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. It has been laid down that independent corroboration of evidence of the complainant is necessary. In the present case, no such independent corroboration is present regarding demand made by the accused.

16. Learned counsel for the accused has further argued that reliance has been placed by the learned trial court on descript memo Ex.-P/10 to corroborate the demand made by the accused. He has argued that this Ex.-P/10 cannot be relied upon because the voice of the accused has not been identified. Secondly, it has not been proved that cassette in which the conversation was recorded, was kept intact. In support of his arguments, he has placed reliance on Ram Singh & Ors. v. Col. Ram Singh , wherein six conditions were laid down by the Honble Supreme Court for the admisiability of the tape recorded statement. On going through the said judgment and evidence available on record, the plea raised by learned counsel is found convincing. PW-1 has admitted in his cross-examination that he himself did not hear the recorded cassette, but prepared the descript as dictated to him. On this ground alone, the credibility of transcription memo Ex.-P/10 is washed away. PW-5 Chandra Sen Singh and PW-6 Ramniwas have admitted that the tape was not sealed on the spot but was sealed after coming to the office.

This also shows that the tape was not kept intact right from the beginning and there was possibility of any addition or alteration in it. No witnesses stated that voice recorded in the cassette was got identified by any person, who recognised the voice of accused. In this situation, I am convinced that Ex.-P/10 could not have been relied upon to corroborate the demand made by the accused. Learned trial court has committed an error in doing so. Thus, in absence of any independent corroboration, the fact of demand is not proved in this case.

17. Secondly, learned counsel for the accused has argued that the fact of voluntary acceptance of tainted money by the accused has not been proved by the prosecution beyond reasonable doubt. His argument is that the money was inserted forcibly in the pocket by the complainant when the accused was sitting with him after consuming alcohol. While relying upon the judgment in State of Punjab v. Madan Mohan Lal Verma , learned counsel has stated that the explanation offered by the accused is to be examined only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. He has contended that in light of the defence evidence produced by DW-3 Dharampal Singh, DW-4 Ishwar Singh, DW-5 Khubiram and DW-7 Dr. Preeyashin Hada, it has been abundantly proved that the accused had consumed alcohol and was under its influence when the money was allegedly recovered from his pocket. This fact was also narrated in Ex.-D/1, the complaint made by the accused to District Collector, Ajmer just after the incident of trap proceedings. Learned counsel, thus, submits that the money which was recovered from the accused was not voluntarily accepted by him, but was thrust upon him by the complainant.

18. On scanning the judgment impugned in light of the arguments advanced by learned counsel, I find that the defence plea raised in this regard has not been accepted by the learned trial court on the ground that no such suggestion was given to the complainant. But on perusal of the cross-examination of complainant PW-4, it is found that the suggestion regarding the accused having consumed alcohol and being in the state of intoxication was given to PW-4. Suggestion regarding the defence plea that the money was forcibly inserted in the pocket of the accused was put to PW-5 Chandra Sen Singh, a member of the trap party and also to PW-6 Ramniwas, Addl. S.P., who was incharge of the trap party. It is also important to note that DW-5 Khubi Ram, who was member of the trap party has stated that money was forcibly inserted in the pocket of accused alongwith the pouch of wine. He has categorically denied that the accused accepted the money voluntarily.

19. In my considered view, it appears that the learned trial court has erred in rejecting the defence plea assuming that the defence side has not been able to prove that plea beyond any reasonable doubt. The burden of proof upon defence is not with that exactness and in that strict sense as expected from the prosecution. The defence plea is to be examined on the touchstone of preponderance of probability only and not on the touchstone of proof beyond all reasonable doubt as laid down in Madan Mohans case. Looking to the defence evidence and suggestions put to prosecution witnesses during their crossexamination, the defence, in my view, has sufficiently proved the plea taken by it on the touchstone of preponderance of probability.

Thus, the fact of voluntary acceptance of the amount as illegal gratification is not found proved against the accused-appellant.

20. Another plea has also been raised by the defence side that because the accused had made a complaint against the complainant Bhagwan Singh for encroaching upon the government land of Khasara No.1074, he revengefully got the accused appellant traped. In this regard DW-1 Brij Mohan, who happened to be Nayab Tehsildar of the concerned area and DW-2 Nandkishore, who happened to be Patwari in the year 1997-98 have been examined.

21. Proceeding of Revenue Case No.709/97 (State vs. Bhagwan Singh) Ex.-D/3 has also been produced. As per this document Bhagwan Singh was declared trespasser on the land of Khasara No.1171, 1172 & 1074 and was ordered to be evicted from the above land. Report Ex.-D/10 made by the accusedappellant, while working as Patwari, Gagel has also been produced, wherein it was proposed to connect the borewell of the accused Bhagwan Singh with the government water supply to solve the difficulty faced by the public at large. Report Ex.-D/15 made by Patwari, Gagel to Nayab Tehsildar, Ajmer has also been placed on record recommending to initiate proceeding against Bhagwan Singh in respect of encroachment made by him. This occular as well as documentary evidence goes to show that the accused Sharvan Lal, who was working as Patwari, Gagel had initiated revenue proceeding against the complainant Bhagwan Singh. This evidence is enough to show the preponderance of probability for taking revengeful action by the complainant against the accused by getting him trapped. The inimical relation between accused and the complainant can be a probable reason to initiate the trap proceeding after getting the accused-appellant intoxicated.

22. In the totality of the facts and circumstances, it appears that in absence of any independent witness regarding the demand having been made by the accused and in the absence of voluntary acceptance of money, the offence charged against the accused is not found proved beyond reasonable doubt. The defence has successfully proved the required evidence to show that the defence plea raised is probable and cannot be rejected outrightly as after thought and concocted one. It appears that the learned trial court has not given much credence to the defence evidence assuming that the defence plea ought to have been proved beyond any reasonable doubt. But this is not the standard of proof which is required from the defence side.

23. As discussed above, the prosecution has failed to prove the necessary facts i.e. (1) demand of money corroborated by independent evidence and (2) voluntary acceptance of money by the accused to fasten liability upon him for the offences punishable under Section 7 and 13(1)(d)(ii) of theof 1988 as laid down by the Honble Supreme Court in Madan Mohan Lals case. On the contrary, the defence plea has been adequately proved on the touchstone of preponderance of probability that the accused appellant has been implicated falsely in the case on account of previous enmity.

24. In light of the discussion made above,the judgment impugned dated 13.9.2007 passed by the learned trial court is liable to be quashed and set-aside and is accordingly quashed and set-aside.

25. The appeal is accordingly allowed.