1 CGHC010277032016 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 468 of 2016 1 - Niranjan Prasad S/o Premlal Sahu Aged About 44 Years Occupation Patwari, Headquarter Kusmund, Police Station Arang, District Raipur. Permanent Address Shyam Nagar, in front of Gurudwara Street, Raipur, Tahsil and District Raipur, Chhattisgarh. ... Appellant Versus 1 - State of Chhattisgarh Through The Incharge, Anti Corruption Bureau, Raipur, Chhattisgarh. ... Respondent(s) For Appellant : Shri Dhirendra Prasad Mishra, Advocate. For State : Shri Karan Bahrani, Panel Lawyer. Hon’ble Shri Justice Ravindra Kumar Agrawal, J Judgment on Board 11.09.2026 1. The present appeal has been filed against the impugned judgment of conviction and sentence dated 30.03.2016 passed by the Special Judge (Prevention of Corruption Act) & Ist Additional Sessions Judge, Raipur, in Special Criminal Case No.04/2009 whereby the appellant has been convicted for the offence under Sections 7, 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act, 1988 (in short, the PC Act) and sentenced for RI for one year with fine of Rs.10,000/-. In default of INDRAJEET SAHU Digitally signed by INDRAJEET SAHU Date: 2026.09.16 10:44:18 +0530 2 payment of fine amount, one month additional RI for both the offences with a direction to run the sentences concurrently. 2. Brief facts of the case are that, the appellant was working as Patwari and posted at P.H. No.36/50, Headquarter Kusmund, Tehsil, Arang, District Raipur. The complainant Kanhaiya Lal, PW-1 was the land owner having agricultural land at village Kagdehi in the name of his father late Pusau Ram Adil. After death of his father in the year 2004, the complainant and his other brother and sisters got their property partitioned mutually and tried to get their holdings separated. For that, the complainant contacted with the appellant who was the then Patwari of the said village. When the complainant asked him to prepare separate Rin Pustika in the name of each brother and sisters separately and to provide them revenue records, the appellant demanded Rs.2000/- for each Rin Pustikas and in addition to that, Rs.1000/- more, thus, he demanded total Rs.9000/- to prepare Rin Pustika in the name of complainant and his brother and sisters. The complainant gave him Rs.1000/- on the same day and on his request, the appellant reduced the total amount of bribe from 9000/- to 6000/- and after giving him Rs.1000/-, an amount of Rs.5000/- was demanded by the appellant. Since he was not intended to give him bribe, he made a complaint on 22.05.2008, Annexure P/1, before the Anti Corruption Bureau (in short ACB) Raipur. The preliminary Panchnama was prepared and tape recorder was provided to the complainant for recording conversation between him and the accused for verification of the complaint made by the complainant. On 24.05.2008 he recorded conversation between him and appellant in the said tape recorder and again went to the office of ACB on 26.05.2008 where the conversation 3 was being heard by the officers and they again called him on 28.05.2008 at about 5 AM in the ACB office. On 28.05.2008 when he went to the office of ACB, he again made another complaint Ex.P/3 disclosing the alleged demand made by the appellant. Some other officers were also there. After having satisfied with the complaint made by him, the script of conversation with respect to conversation recorded on 24.05.2008 was prepared which is Ex.P/4. Tap recorder and cassette were seized. The amount of Rs.5000/- in the form of 5 currency notes of 1000 denomination were given by the complainant to the officers of ACB in which phenolphthalein powder were applied. Personal search was being conducted by the officers of the ACB and after preparing relevant Panchnamas, the tainted currency notes were kept in the pocket of the pant of the complainant and he was convinced the manner it is to be given to the appellant and was advised not to touch the said currency notes before handing it over to the accused. They also convinced him to make gesture after completion of transaction. Another tape recorder was given to the complainant for recording entire conversation with the accused at the time of handing over the amount to him. They proceeded towards the office of appellant where they made conversation and complainant gave the said currency notes to appellant. He kept it in the pocket of his shirt. After completion of transaction, he came out from the office room and on gesture being made about completion of transaction by the complainant, the trap party entered into the office of appellant and caught him hold. The appellant tried to flee from the place. He also tried to give the said tainted currency notes to his Assistant Manikpuri, PW-6, however, he could not catch the said tainted currency notes and it was 4 scattered on the floor. The officers of ACB caught hold the appellant and seized the tainted currency notes. The hands of appellant were washed upon which the colour of handwash was turned into pink. After wash, the colour of tainted notes also got turned into pink. The handwash of Mr. Manikpuri, PW-6, Assistant of appellant, also got turned into pink colour and relevant Panchnamas were prepared. The Rin Pustika which was provided by the appellant to the complainant was seized vide Ex.P/9. The tape recorder given to the complainant on 28.05.2008 was also seized vide Ex.P/11 and its transcript Ex.P/10 was prepared. FIR has been registered against the appellant. Sanction for prosecution was obtained and after completion of investigation charge sheet was filed against the appellant before the trial court for the offence under Sections 7, 13(1)(d) and 13(2) of PC Act. The trial court framed charge against the appellant for the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The appellant abjured his guilt and claimed trial. 3. In order to prove charge against the appellant, the prosecution has examined as many as 11 witnesses. The statement under Section 313 CrPC of the appellant was also recorded in which he denied the circumstances appears against him, pleaded innocence and submitted that the complainant has already taken his Rin Pustika much before 28.03.2008 and he has already sold some part of his land which is mentioned in the mutation register. The complainant came to him along with consent deed and pressurized him to get the entire land mutated in his name alone. When he refused to do so stating that it is the jurisdiction of Tehsildar, then he threatened to see him. On the date of incident when he was opening the door of his office room, the complainant came and 5 tried to forcibly keep the amount in his pocket. When he refused, the note scattered on the floor. He is innocent and has not committed any offence. In his defence, he examined two defence witnesses Daulat Das Manikpuri, DW-6 and Toman Lal Sahu, DW-2. 4. After appreciation of oral as well as documentary evidence led by the prosecution, the trial court convicted the appellant and sentenced him as mentioned in the earlier paragraph of this judgment. Hence this appeal. 5. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. The three ingredients of offence i.e. demand, acceptance and recovery have not been duly proved by the prosecution, and therefore, no offence is made out against the appellant. Merely recovery of amount from the office of appellant is not sufficient to hold him guilty in the offence in question. There was no voice sample or test report of the frequency of the voice of the complainant and appellant so as to hold that there was conversation between the appellant and the complainant. Until and unless it is proved that the voice recorded in the tape-recorder is the true voice of complainant as well as appellant by any scientific report, it cannot be accepted that the voice recorded are the voice of complainant and appellant. In the first complaint the complainant alleged that demand of Rs.9000/- was made out of which Rs.1000/- was given to appellant, however, in the second complaint he stated that out of Rs.9000/-, Rs.1000/- has already been paid to him and on his request the appellant left Rs.3000/- and amount of bribe was settled at Rs.5000/- which is missing in his first complaint. The alleged recording of voice in tape 6 recorder was on 24.05.2008. As per his evidence, the complainant again approached before the officers of ACB on 26.05.2008 and handed over tape recorder to them, however, there is no seizure of tape recorder either on 24.05.2008 or 26.08.2005, but seizure has been made on 28.05.2008. There is no explanation about safe custody of said tape recorder from 24.05.2008 till 28.05.2008. The investigating officer, PW-11 himself has admitted that transcription of conversation was prepared on 28.05.2008 whereas the alleged tape recorder was handed over to the investigating officer on 26.05.2008. The complainant himself has admitted that the said tape recorder or cassette were not sealed at the time when he handed over it to the investigating officer. From all these circumstances, the demand of bribe has not been proved by the prosecution. There is discrepancy in acceptance of amount of bribe. Though handwash and clothes of the appellant were turned into pink colour, however, tainted currency notes were recovered from the floor and not from the pocket of the appellant though it is alleged by the prosecution that when the raid party tried to catch him, he tried to handover the said currency notes to his Assistant, however, the said Assistant, PW-6 has denied the said fact. Further, the currency were not seized from his possession, but collected from floor. The subject work of separation of holdings were already done much prior to the date of incident and there was no reason for demanding bribe from the complainant. The evidence of prosecution witnesses are not reliable and there are material inconsistency in their evidence with that of trap proceeding. Therefore, the prosecution has completely failed to prove the charge against the appellant and as such he is entitled for benefit of doubt and his appeal is liable to be allowed. 7 6. On the other hand, learned counsel for the State opposes the submissions made by the counsel for the appellant and would submit that from the evidence adduced by the prosecution, the demand as well as acceptance has duly been proved. There are sufficient evidence on record to prove that appellant demanded Rs.6000/- out of which Rs.1000/- was already paid to him and Rs.5000/- was to be paid on 28.05.2008 for which the complainant made a complaint, Ex.P/1 and subsequent complaint is Ex.P/3. The conversation was duly recorded in tape recorder and transcript has already been prepared, but for minor omissions or contradictions, the evidence of complainant as well as shadow witnesses duly supported the case of prosecution that tainted currency notes were given to the appellant and when the officers of ACB tried to catch him, he tried to flee from the place and in between that period, he also tried to hand over the currency to his Assistant Mr. Manikpuri, PW-6, however, he could not catch the tainted notes and it fell on the floor. He would further submit that recovery has also been proved by the prosecution as notes were found scattered on the floor of office of the appellant. The hand wash which turned into pink colour also supported the case of prosecution that the said tainted currency notes were handed over to the appellant and he accepted the notes in lieu of alleged demand made by him as bribe. Therefore, the judgment of conviction and order of sentence passed by the trial court is justified and needs no interference. 7. I have heard the counsel for the parties and perused the records of the trial court. 8. In a case of illegal gratification, there are three essential ingredients to constitute the offence, they are (i) demand (ii) acceptance and (iii) 8 recovery. In the case of Mukhtiar Singh (Since Deceased) through his legal representatives Vs. State of Punjab reported in (2013) 14 SCC 153 it was held by the Hon’ble Supreme Court in paras 14 & 23 as under:- “14. In P. Satyanarayana Murthy, this Court took note of its verdict in B. Jayaraj V. State of A.P2. Underlining the mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Sections 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana murthy on a survey of its earlier decisions on the prerequisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder: (SCC p. 159, para 23) "23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder." 9. In the matter of Neeraj Dutta Vs. State (NCT) of Delhi reported in (2023) 4 SCC 731, the constitutional Bench of Hon’ble Supreme Court has discussed the scope of proof of Section 7 and 13(1) (d) of the Prevention of Corruption Act, 1988 which reads as under:- 88. What emerges from the aforesaid discussion is summarized as under: 88.1. (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. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification 9 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. 88.3. (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. 88.4. (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 Sections 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 Sections 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 in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d) (I) and (ii) of the Act. 88.5. (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. 88.6. (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 an order of acquittal of the accused public servant. 10 88.7. (g) Insofar 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 Sections 13(1)(d) (i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature. 89. 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. Narsinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for the 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.” 10. In the instant case, the complainant PW-1 has made a written complaint Ex.P/1 on 22.05.2008 with the allegation that the partition and mutation of his family property was already taken place a month’s back and he also obtained Rin Pustika from the office of Patwari, but he is demanding Rs.2000/- for each Rin Pustika and Rs.1000/- for its certified copy. He already obtained Rs.1000/- from him and one Rin Pustika has been given to him. He retained three Rin Pustika with him in lieu thereof he is demeaning Rs.8000/-. In his deposition he stated that he approached the Patwari concerned for separation of his holdings on the basis of partition of his family property for which the accused demanded Rs.2000/- for each Rin Pustika and also demanding Rs.1000/- for certified copy. On his request, he reduced his demand for about Rs.3000/- and total amount was settled as Rs.6000/- 11 out of which Rs.1000/-has already been paid. Since he was not intended to give bribe, he made a complaint on 22.05.2008. After making the complaint, the officers of ACB gave him a tape-recorder with cassette for recording of conversation between him and accused and Panchnama Ex.P/2 was prepared. On 24.05.2008 he again made conversation and got it recorded in the said tape-recorder. The accused called him on 28.05.2008 to his office at village Kusmund along with Rs.5000/-. Thereafter, on 26.05.2008 he handed over the said tape-recorder and cassette to the officers of ACB and after hearing the conversation, they again called him on 28.05.2008 at about 5 AM in the ACB office. On 28.05.2008 when he reached to the office of ACB, he met with other other witnesses i.e. Shri Vishwakarma and Shri Sahu thereafter he made second complaint Ex.P/3 disclosing the alleged demand made by the appellant. After having satisfied with the complaint made by him, the script of conversation with respect to conversation recorded on 24.05.2008 was prepared which is Ex.P/4 and cassette was seized vide Ex.P/5. An amount of Rs.5000/- in the form of 5 currency notes of 1000 denomination were handed over by him to the officers of ACB in which phenolphthalein powder were applied. Personal search was being conducted by the officers of the ACB and after preparing relevant Panchnamas, the tainted currency notes were kept in the back pocket of his full pant and he was convinced not to touch the said currency notes before handing it over to the accused. They also convinced him to make gesture after completion of transaction and Panchnama P/7 was prepared. Another tape recorder was given to him for recording entire conversation with 12 the accused at the time of handing over the amount to accused. Hand wash was also collected and except the staff who applied the phenolphthalein powder over the notes, the colour of other hand wash of other witnesses remain unchanged whereas, the handwash of person who applied phenolphthalein powder over the notes have been turned into pink colour. After pre trap Panchnama, they proceeded towards towards the office of appellant along with Police Inspector Thakur. When the accused asked for bribe, he gave the said tainted currency notes to the appellant. The appellant kept the notes in the pocket of his T-shirt and thereafter he handed over three Rin Pustika and about to proceed towards Arang. At the same time he made gesture and trap party entered into the office of appellant and caught him hold. The appellant tried to flee from the place. He also tried to give the said tainted currency notes to his Assistant Manikpuri, PW-6, however, he could not collect the said tainted currency notes and notes fell on the floor. Trap proceeding was drawn. The hands of appellant were washed upon which the colour of handwash was turned into pink. After wash, the colour of tainted notes also got turned into pink. The handwash of Mr. Manikpuri, PW-6, Assistant of appellant, also got turned into pink colour and relevant Panchnamas were prepared. The Rin Pustika which was handed over by the appellant to him was seized vide Ex.P/9. Another transcript Ex.P/10 was prepared. Seizure of cassette is Ex.P/11. 11. At this stage, the complainant was declared hostile and he was cross examined by the prosecution and thereafter he supported the proceeding of pre trap Panchnama. In cross examination, he admits 13 that he is a Police Constable and posted as Driver in the Police Department. He admits that in the cassette in which conversation was recorded, the voices of his brothers Rajkumar and Balram are also recorded. He admits that on 26.05.2008 when he handed over cassette to the officers of ACB, neither it was seized nor it was sealed. They simply kept with him. On 28.05.2008 the transcript Ex.P/4 was prepared. On 28.05.2008 the tape-recorder and cassette were not seized from him at ACB office. He could not know the details of Constable who applied phenolphthalein powder over the tainted currency notes and kept it in his pocket. 12. He denied the suggestion that at the time when he reached to the office of accused Patwari, he was not found there and his office room was locked. He admits that the accused asked him as to why he was being called from Samoda and what urgent work he is having. He denied that he handed over the tainted currency notes to Mr. Manikpuri and not the accused. He voluntarily stated that at the time when he handed over the notes to the accused, Mr. Manikpuri was not there. He could not remember from whom the tainted currency notes were seized. He further states that in his police statement he has not disclosed that the accused has demanded Rs.1000/- for certified copy of revenue records. He could not remember on which date he handed over Rs.1000/- to accused. He disclosed in his police statement about handing over three Rin Pustika by the accused to him and if it is not in his police statement, he could not tell the reason. He has not disclosed in police statement that partition order was already passed by the Tehsildar a months back. He admits that before trap proceeding, his 14 brother Rajkumar had already taken his Rin Pustika from the accused. He admits that in his police statement Ex.D/1 he disclosed that the accused has taken signature of his brother and sisters in blank stamp paper on the pretext that he will get the Rin Pustika prepared. He disclosed it first time before the court. 13. From the evidence of complainant it clearly transpires that he made a complaint on 22.05.2008 and as per his written complaint Ex.P/1 itself, he already received all the Rin Pustikas from the accused and partition order was already passed much before the trap proceeding. As per his evidence, he got the conversation recorded on 24.05.2008 and the said tape-recorder and cassette was handed over to the officers of ACB on 26.05.2008, but neither any transcript was prepared on that day nor any seizure memo was prepared. Even the said tape-recorder and cassette were not sealed in presence of witnesses so that tampering of said tape-recorder and cassette can be ruled out. There are substantial inconsistency in two complaints made by the complainant i.e. Ex.P/1&P/3. In the written complaint Ex.P/1 made on 22.05.2008 he states that he already received Rin Pustika from Patwari office and he demanded Rs.9000/- out of which Rs.1000/- was already paid to him. In the second written complaint Ex.P/3 which was made on 28.05.2008, he stated that the mutation and partition proceeding has already been done a months back and he already received all the four Rin Pustikas from the Patwari, however, the accused is demanding Rs.9000/-as bribe and on his request he reduced his demand for Rs.3000/- and demanding Rs.6000/-from him and retained the Rin Pustika. Though he stated that on 24.05.2008 he has recorded the 15 conversation between him and the accused, but in the first complaint he stated that the accused demanded Rs.9000/- whereas, in the second complain he stated that the accused demanded Rs.6000/-. In the facts that when the order of mutation and partition has already been passed by the Tehsildar a months back and all four Rin Pustika he has already collected from Patwari office, there was no reason to make any demand after handing over Rin Pustika to the complainant and in the first complaint there is no mention about reduction of Rs.3000/- from the total demand. Further, from the transcript Ex.P/4 it transpires that it was prepared on 28.05.2008 which was from the tape- recorder and cassette handed over by the complainant to the officers of ACB on 26.05.2008. When the tape-recorder and cassette neither seized on 26.05.2008 nor transcript was prepared on that very time in presence of the witnesses and there is no evidence that it was kept in safe custody of sealed condition, its tampering cannot be ruled out by the prosecution that there is no tampering in the said tape-recorder and the conversation was intact. 14. PW-11 is the Investigating Officer, who have stated in his evidence that on 22.05.2008 the complainant came to the office of ACB and made a written complaint Ex.P/1. He handed over tape-recorder and cassette to the complainant for recording conversation between him and the accused and Panchnama Ex.P/2 was prepared. On 26.05.2008 the complainant again came there along with tape-recorder and informed that he recorded conversation between him and the accused. PW-11 again called him on 28.05.2008 and on 27.05.2008 he wrote a letter to Superintendent of Police for two independent witnesses. There is no 16 evidence that on 26.05.2008 when the complainant handed over the tape recorder and cassette, it was seized or kept in sealed condition. 15. This witness has further stated that on 28.05.2008 the complainant again appeared in the office of ACB and made another complaint Ex.P/3. Thereafter, conversation in tape-recorder was being heard and transcript was prepared which is Ex.P/4 and then the seizure memo of the cassette was prepared which is Ex.P/5. From this part of evidence of PW-11 it is quite clear that transcript of the conversation which was recorded on 24.05.2008 was prepared on 28.05.2008 when the complainant again appeared in the office of ACB. Before that, there is no evidence with respect to safe custody of tape-recorder and cassette which was handed over to the officers of ACB on 26.05.2008. When the safe custody of the tape-recorder and cassette has not been proved by the prosecution, its transcript can also not be considered to be free from any doubt or suspicious. 16. PW-11 has further stated about the trap proceeding and thereafter he stated that after the trap proceeding he seized Rin Pustika from the complainant vide seizure memo Ex.P/9. Thereafter, on being demand raised from the complainant, he handed over the tape-recorder and cassette to him and then its conversation was also heard and transcript Ex.P/10 was prepared and the tape-recorder and cassette was seized vide seizure memo Ex.P/1. This is completely contradict the evidence of other witnesses and also the procedure for trap. The second tape- recorder should have been handed over by the complainant to the officers of the ACB before pre trap Panchnama and after verifying the conversation and recording of transcription and after having satisfied, 17 they ought to have proceeded for trap of the accused, however, in the present case after the entire proceeding of trap, the second tape- recorder and cassette was handed over to the officers of ACB and then transcript was prepared which cannot be relied upon as corroborative evidence against the accused. 17. PW-11 further admits that in the tape-recorder the voice of the children and others persons was there. He further states that the complainant has handed over the tape-recorder and cassette on 28.05.2008 and before that it was in possession of complainant. He further states that in the transcript Ex.P/10 the name of the accused was not mentioned. Further, in the transcript there is no demand made by the accused or even there is no conversation with respect to transaction of documents. 18. In the matter of Rajesh Gupta Vs. State through Central Bureau of Investigation, 2022 (2) SCR 864 it has been held by the Hon’ble Supreme Court that tape recorded statement is admissible in evidence if the voice of the speaker is identified by the maker of record and other persons recognizing his voice. In paragraph 12 of said judgment, it has been held as under : “12. On the issue of evidentiary value and credibility of the recording in the cases of trap, the law is well settled in the case of Ram Singh vs. Col. Ram Singh 1985 (Suppl) SCC 611, wherein this Court held that tape recorded statement is admissible in evidence if the voice of the speaker is identified by the maker of the record and other persons recognizing his voice. In case, the maker is unable to identify the voice, strict proof would be required to determine whether or not, the said voice is of alleged speaker. The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence, direct or circumstantial. The possibility of tampering with, or erasure of any part of the tape recorded statement must be totally excluded. The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds 18 or disturbances, otherwise, the transcript as prepared, is inadmissible in evidence.” 19. Admittedly, in the present case the prosecution has not proved the fact that the voice recorded in the tape-recorder was the voice of the appellant Niranjan Prasad. Therefore, possibility of tampering with the tape-recorder and alleged conversation cannot be ruled out. 20. Further, in absence of certificate under Section 65-B of the Evidence Act, the evidence of a digital tape-recorder is not admissible as held by the Supreme Court in Sanjay Singh Ramrao Chavan Vs. Dattratray Gulabrao Phalke & Others, 2015(3)SCC 123. In paragraph 16, the Hon’ble Supreme Court has held that: “16. It is to be noted that in the first complaint filed by the second respondent - the de facto complainant, there is no allegation for any demand for bribe by the appellant. The allegation of demand is specifically against accused no.2 only. That allegation against the appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure-B report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. Learned Counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer and others[4].” 21. PW-3, R.R. Vishwakarma, is the shadow witness. He has stated in his evidence that on 28.05.2008 at about 5 AM he went to the office of ACB as he was served with a notice to be a witness of trap proceeding. He read over the written complaint made by the complainant and made his note over it which is Ex.P/3. The complainant produced a tape- recorder and after hearing the conversation, a transcript Ex.P/4 was 19 prepared thereafter the cassette was sealed and seized vide Ex.P/5. The complainant handed over Rs.5000/- to the officers of ACB in which the phenolphthalein powder was applied by Mr. Mandavi. After personal search, the tainted currency notes were kept in back packet of full pant of complainant and he was convinced about the gesture to be made after the completion of transaction. The hand wash was also seized. Another tape-recorder was given to the complainant for recording of conversation at the time of transaction and Panchnama Ex.P/7 was prepared. Thereafter, they proceeded towards the office of accused. Pre trap Panchnama Ex.P/8 was prepared. The complainant entered into the office of accused and after sometime he came out and made gesture and then they also entered into the office of accused. At the time when they entered into the office room, the accused was being caught hold by Sahdev Thakur and two Police Constables. His hand wash was turned into pink colour and it was seized. The accused tried to flee from the place and threw the tainted currency notes on the floor which was taken up by him and seized. Initially the accused kept the tainted currency notes in the pocket of his T-shirt and while running from the place he threw it in the lane. When the accused threw the currency notes in the lane, one Purshottam Manikpuri touched the said currency notes and therefore his hand wash was also turned into pink colour. The police ha also seized Rin Pustika from the complainant and seizure memo Ex.P/9 was prepared. Thereafter the complainant handed over the tape-recorder and cassette to the officers of ACB and conversation was heard and transcript Ex.P./10 was prepared and then the tape-recorder and cassette was seized vide seizure memo Ex.P/11. 20 22. In cross examination he shows is ignorance about who has written the complaint Ex.P/1 & P/3. He also contradicted his police statement and stated that his evidence is not a part of his police statement then he could not tell the reason. He further admits that before the incident he was not acquainted with the voice of the accused. He also did not identify the make of the tape-recorder or cassette given to the complainant. He could not remember as to whether in the conversation which he heard, the voice of other persons or children were there or not. The transcript of conversation recorded in the tape-recorder was prepared with the help of complainant. He himself took the tainted currency notes from the floor. He admits that he has not heard the conversation between the complainant and the accused. At the time when they reached at the office of accused, the other persons of village were also present and in his presence the accused has not demanded any money from the complainant. He could not remember as to hand wash of how many persons were made. He further submits that at what time the cassette was seized he could not tell and also could not tell from whom it was seized. After taking the tainted currency notes from the floor he handed it over to Shivbadan Singh Mishra for its wash. Thereafter, the said notes were seized. He also shown his ignorance about seizure of Rin Pustika. He admits that in the transcript Ex.P/10 there was no clear voice about demand of bribe, handing over the documents and transaction. He admits that he has seen the tainted currency notes lying in lane. 23. From evidence of this witness, it clearly reveals that on the material point of his evidence either he shown his ignorance or he denied the 21 veracity of the trap proceeding. In such statement made by him, it cannot be said that he dully supported the trap proceeding in which he was a witness. His evidence has not been corroborated with the evidence of complainant PW-1 and investigating officer, PW-11 as he shown his ignorance on the material point of trap proceeding. 24. PW-7, Shivbadan Mishra is another shadow witness of the trap proceeding. He stated in his evidence that on the date of incident he reached to the office of ACB at about 5 AM. The complainant was already present. The complainant handed over a tape-recorder and a complaint and after reading it, they satisfied and made a note over it. The conversation recorded in the tape-recorder was heard by him and a transcript was prepared. Thereafter, the cassette and tape-recorder was sealed and then the complainant handed over Rs.5000/- to the officers of ACB in which the phenolphthalein powder was applied, the search of the complainant was taken and tainted currency notes were kept in the back pocket of his full pant and convinced him not to touch the same before handing it over to the accused. The proceeding of hand wash was conducted and hand wash was seized. Another tape- recorder was handed over to the complainant for recording of conversation at the time of handing over currency notes to the accused. Thereafter, they proceeded towards the place of incident. The complainant entered into the office room of the accused and after sometime Rampravesh Mishra informed him that transaction is complete and they were directed to enter into the office of accused. When they entered inside the room, they saw the accused trying to flee from the place and as and when he reached there, the accused tried to 22 give the said tainted currency notes to another person who was also present there and when he refused to accept it, it fell on the floor. They caught him hold and thereafter other proceedings were drawn. The said notes were picked up from floor by the Panch witnesses. The hands were washed and hand wash went into pink colour. The hand wash were seized, necessary Panchnamas were prepared on the spot and T-Shirt of the appellant was also seized. Thereafter the conversation recorded in the tape recorder was heard and transcript was also prepared. In cross examination he admits that in his presence there was no conversation between the accused and the complainant. He did not know about model and make of tape-recorder and cassette which was given to complainant. He has not heard the conversation of tape-recorder. He did not know that the complainant called the accused from another village. Along with complainant, he and Rampravesh Mishra had not entered into the office room of the accused. He also did not remember presence of other persons in the office room of the accused or nearby places. He admitted that at village Kusmund he has not heard any voice in the tape-recorder. He also did not know who prepared the transcript and when it got prepared. 25. PW-10, Sahdev Thakur is the Inspector posted at ACB Raipur. He stated in his evidence that on 27.05.2008 he was instructed that he has to go outside for confidential work on 28.05.2008 and remain present at about 5 AM in the office of ACB. On 28.05.2008 the complainant and Panch witnesses were present in ACB office. The complainant gave a written complaint and tape-recorder. After hearing the conversation in the tape-recorder, a trap party was constituted and the complainant 23 handed over Rs.5000/- to him. The necessary Panchnamas were prepared and phenolphthalein powder was applied in currency notes and it was kept in back pocket of full pant of complainant. The handwash was made and another tape-recorder was handed over to complainant for recording conversation at the time of handing over bribe to the accused. After preparation of necessary Panchnamas and pre trap Panchnama, they proceeded towards the office of accused at village Kusmund. He along with complainant entered into office room of accused. After initial paper work, the accused demanded the amount from the complainant and then the complainant took out the tainted currency notes from his pocket and gave it to accused. Thereafter, the accused handed over Rin Pustika to the complainant. The accused kept the tainted notes in the pocket of his T-Shirt and then the complainant made gesture about completion of transaction. At the time when the accused was coming out from his room, he was caught hold by them and then accused tried to flee and hand over the currency notes to his Assistant and asked him to run away from the place, but his Assistant could not collect the notes and it fell on floor. He was being caught hold by police party and officers of ACB. Thereafter, the proceedings were started and necessary Panchnamas were prepared. Though he remain with the complainant throughout the proceeding, but his evidence could be confined only to the acceptance and recovery of tainted currency notes. He admits that he could not remember that at the time when they reached to the office of accused, other persons were also present. The currency notes which fell on the floor were 24 picked up by Panch witness. He also denied that the accused stated there that he already handed over Rin Pustika to the complainant. 26. When this court went through the entire evidence produced by the prosecution, it surfaced that when the order of partition and mutation had already been passed in favour of the complainant and as per his written complaint Ex.P/1 & P/3 all the Rin Pustikas were already handed over to him, there was no occasion to demand any bribe by the accused from the complainant or any cause remain for making demand by the accused. Further, the alleged conversation of demand was recorded in the tape-recorder on 24.05.2008 which was informed and produced before the officers of ACB on 26.05.2008, however, the said tape-recorder was neither seized nor sealed on 26.05.2008 and there is no clinching evidence as to in whose possession the said tape- recorder was kept upto 28.05.2008. As per the evidence of complainant, he handed over tape-recorder on 26.05.2008 to the officers of ACB whereas as per evidence of PW-11, the investigating officer, the said tape-recorder was kept in possession of complainant himself and he handed over to the officers of ACB on 28.05.2008. Thus, there is substantial contradiction in the demand made by the accused for the work of partition, mutation and also for preparation of Rin Pustika. Further, there is no voice sample or any electronic evidence with respect to the fact that voice recorded in the said tape- recorder is the same voice of the accused. Hence, the requirement to prove the demand made by the accused on the complainant could not be proved by the prosecution beyond reasonable doubt and the accused is entitled for benefit of doubt. 25 27. The Hon’ble Supreme Court has held in the matter of State of Kerala Vs. C. P. Rao reported in (2011) 6 SCC 450 that mere recovery of tainted money is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In para 10 it was observed as under: “10. In C.M. Girish Babu v. CBI {2009 (3) SCC 779), this Court while dealing with the case under the Prevention of Corruption Act, 1988, by referring to its previous decision in Suraj Mal v. State (Delhi Admn.) (AIR 1979 SC 1408) held that mere recovery of tainted 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. The mere recovery by itself cannot prove the charge of the prosecution against the accused. In the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.” 28. In the case of B. Jayaraj v. State of A.P. (2014) 13 SCC 55 it was held by the Hon’ble Supreme Court that mere recovery of currency notes cannot prove the offence and it has been held as under: “7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. ((2010) 15 SCC 1) and C.M. Girish Babu v. CBI {(2009) 3 SCC 779). 29. In case of RPS Yadav Vs. Central Bureau of Investigation reported in (2015) 11 SCC 642 it was held by the Hon’ble Supreme Court in para 10 as under:- “10. In fact, we do not find any such legally acceptable evidence either from PW 3 or from the other so-called independent witness PW 6 or the shadow witness in order to show that the mandatory requirement for conviction under Sections 7 and 13(2) read with Section 13(1)(d), namely, the demand, acceptance and recovery 26 was chronologically proved as against the appellant. In the light of our above conclusion based on the analysis of the evidence led before the Court, we are constrained to hold that the conviction imposed on the appellant by the trial Court as well as confirmation of the same by the High Court cannot be sustained.” 30. Further, in the case of Sejappa v. State reported in (2016) 12 SCC 150 the Hon’ble Supreme Court in paras 10 & 21 held as under:- “10. In order to constitute an offence under Section 7 of the Prevention of Corruption Act, “proof of demand” is a sine qua non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of A.P. {(2014) 13 SCC 55}, wherein this Court held as under: “7. Insofaras the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. ((2010) 15 SCC 1) and C.M. Girish Babu v. CBI {(2009) 3 SCC 779).” “21. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to the following observation in Mukut Bihari v. State of Rajasthan {(2012) 11 SCC 642), wherein it was held as under: “11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the 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 bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, 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 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, 27 only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person.” 31. On minute examination of the evidence led by the prosecution it is quite clear that with regard to initial demand, there are material contradictions in the evidence of complainant PW-1 and other witnesses. From the evidence of investigating officer PW-11, S.S. Bhagat, it is clear that the evidence of initial demand could not be proved. Further, the safe custody of conversation recorded in the tape- recorder has also not been pr oved. The contradictory and inconsistent statement of witnesses are not sufficient to hold the accused guilty for the alleged offence. Although the other persons were also present nearby the place of incident, but the prosecution examined none of them. It is suspicious that when the order of partition and mutation had already been passed a months back from the date of incident, the Rin Pustikas were already handed over to the complainant, then why demand was made by the accused as transaction has already been completed much prior to the date of incident. Thus, the demand and acceptance of bribe money is suspicious. Only recovery of tainted amount from the accused would not be sufficient to hold him guilty for the alleged offence. Therefore, in the considered opinion of this court, the prosecution has not been able to prove its case of demand and 28 acceptance of bribe money against the appellant beyond reasonable doubt. 32. Consequently, by giving benefit of doubt, the appeal is allowed. The judgment of conviction and order of sentence passed by the trial court is set aside. The appellant is acquitted from the offence alleged against him. The appellant is reported to be on bail. His bail bond shall remain in operation for a further period of six months as provided under Section 481 of BNSS Act, 2023. 33. The trial court record be send back forthwith along with copy of this judgment for necessary compliance. Sd/- (Ravindra Kumar Agrawal) Judge inder