1 2025:CGHC:41830 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 20.06.2025 Judgment delivered on: 19.08.2025 CRA No. 294 of 2009 1 - Umesh Kumar Yadav, S/o Shri Rajaram Yadav, Aged About 38 Years, Occupation- Service, Upper Division Clerk, South Eastern Coalfields Limited, Surakachhaar, Bankimongra, District Korba (C.G.). --- Appellant versus 1 - Union of India Through- The Central Bureau of Investigation, Jabalpur (now Chhattisgarh) --- Respondent(s) With CRA No. 293 of 2009 1 - Nityanand Digar, S/o G.B. Digar, Aged About 52 Years, Occupation- Service Clerk, South Eastern Coalfields Limited, Surakachhaar, Bankimongra, District- Korba (C.G.). ---Appellant 2 Versus 1 -Union of India Through- The Central Bureau of Investigation, Jabalpur (now Chhattisgarh) --- Respondent(s) For Appellant (s) : Mr. Sandeep Dubey with Mr. Afroz Khan, Advocates For Respondent(s) : Mr. Himanshu Pandey, Advocate Hon’ble Smt. Justice Rajani Dubey C A V Judgment 1. Since both the appeals arise out of common judgment, therefore they are heard together and decided by this common judgment. 2. Both the appeals under Section 374(2) of Code of Criminal Procedure have been filed against the the judgment of conviction and order of sentence dated 30.03.2009 passed by learned Special Judge, Central Investigation Bureau, Raipur in Special Criminal Case No. 56/2004 whereby, the trial Court has convicted the appellants and sentenced them as under:- Conviction Sentence U/s 7 and 13(1)(d) read with Section 13 (2) of the R.I. for one and half years with fine of Rs.3000/- and in default of payment of fine, additional R.I. for 6 months each 3 Prevention of Corruption Act, 1988 (Fine amount has already been deposited) 3. According to the prosecution case, complainant Budga, who was terminated from the service, has submitted an application to the Personnel Manager, SECL Sura-kachhar Colliery along with other relevant documents for releasing of his C.M.P.F. amount and when he contacted the appellants and asked them about his application, the appellants demanded a bribe of Rs.10,000/- for processing his application. The complainant showed his inability to pay the said amount, therefore, they asked the complainant to pay Rs.3,000/- and lastly, the complainant agreed to pay Rs. 2,000/- as bribe to the accused persons. Thereafter, the complainant lodged a complaint before the Central Bureau of Investigation and after registration of the complaint, on 08.11.2004, the CBI gave currency to the complainant, organized a trap and thereafter caught the accused persons red handed. Thereafter, FIR was registered against the appellants for the offence under Sections 120B of IPC and Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. subsequently, charge-sheet was filed against the appellants. Learned trial Court framed the charges under Sections 120B of IPC and Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, to which appellants abjured 4 their guilt and prayed for trial. 4. So as to hold the accused/appellants guilty, the prosecution has examined as many as 11 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied all the incriminating circumstances appearing against them and pleaded innocence and false implication in the case. However, they did not adduce any evidence in their defence. 5. Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 30.03.2009, finding evidence adduced by the prosecution trustworthy, acquitted the appellants of the offence under Section 120-B of IPC and convicted them under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, and sentenced them as mentioned in para 1 of the judgment. Hence, this appeal. 6. Learned counsel for the appellants submits that the impugned judgment of conviction and order of sentence is illegal, perverse and not sustainable in the eyes of law. The finding recorded by the learned trial Court is not sustainable in view of the fact that sanction for prosecution, as required under Section 197 of Cr.P.C. has not been obtained by the prosecution agency. The complainant has stated in his evidence that the gratification has been kept by the appellant Nityanand, whereas the illegal 5 gratification was seized from the junk-yard i.e. store room and not from the possession of the accused persons and this fact itself creates doubt over the credibility of the complainant. Inspector Shri Rajiv Kumar Sinha has admitted in his evidence that he has not seen the accused Nityanand going towards the junk room and further it is not possible to throw any thing from the place where Nityanand was sitting, whereas, Shri B. Paneer Selbam, Inspector, C.B.I has stated in his evidence that the accused Nityanand has thrown the money received by complainant Budga in the junk-room. Thus, it is clear that the prosecution witnesses themselves are making contradictory statements which makes the entire prosecution doubtful. Thus, the appellants have been falsely implicated in the crime in question. One Samaru who was present with the complainant on the spot has not been examined by the prosecution and in this regard no explanation has been put forth by the prosecution. The independent witnesses did not support the prosecution case and they have been declared hostile. Even the other staff working in the said office at the relevant time have also not supported the case and turned hostile. The learned trial Court has failed to take into consideration the most relevant aspect of the matter that the accused persons have not been cast with any official duty at the relevant time i.e. of disbursing or granting CMPF amount which will be further clear from perusal of the statement of Shri Ashish Adhikari (P.W.-4), Personnel Manager who has stated in his 6 statement that the accused persons were working in that department, however, subsequently they have been transferred to Bill/EMM Department and therefore, there is no question of favouring or dis-favouring any person when no duty has been cast on the appellants in this regard. In this case, the prosecution has utterly failed to prove both demand and acceptance. Therefore, the impugned judgment is liable to be set aside. In support of his contention, he has placed reliance on the decisions of Hon’ble Supreme Court in the matter of Mukhtiyar Singh (since deceased) through his legal representative Vs. State of Punjab; (2017) 8 SCC 136, N. Vijayakumar Vs. State of Tamil Nadu; (2021) 3 SCC 687 & B. Jayaraj Vs. State of Andhra Pradesh; (2014) 13 SCC 55 and judgments passed by this Court in the matter of Shakuntala Mishra Vs. State of Chhattisgarh; AIR ONLINE 2022 CHH 35, Laxman Singh Vs. State of Chhattisgarh; AIR ONLINE 2022 CHH 171, Omprakash Pradhan Vs. State of Chhattisgarh; AIR ONLINE 2022 CHH 440, Baldauram Sahu (Died) by his LRS Vs. State of M.P. (now Chhattisgarh); AIR ONLINE 2022 CHH 34, Vijay Kumar Bhandari And Another Vs. State of Chhattisgarh; 2020 SCC ONLINE CHH 434, Shashikant Sharma Vs. State of Chhattisgarh; 2020 SCC ONLINE CHH 1740, Ali Mohammad Khan Vs. State of Chhattisgarh; 2020 SCC ONLINE CHH 2088, Ram Prasad Nayak Vs. State of Chhattisgarh; 2020 SCC ONLINE CHH 2305, Rohit Kumar Sahu Vs. State of 7 Madhya Pradesh; 2021 SCC ONLINE 1507, Shivprasad Kuldeep And Others Vs. State of Chhattisgarh; 2021 SCC ONLINE 1510, Yadhoram Banote Vs. State of M.P.; 2021 SCC ONLINE CHH 1817 & Dewatram Vs. State of Chhattisgarh; 2021 SCC ONLINE CHH 2494. 7. On the other hand, learned counsel for the State supporting the impugned judgment submits that the learned trial Court considering all the relevant aspects of the matter has rightly convicted and sentenced the appellants by the impugned judgment which calls for no interference by this Court. 8. Heard counsel for the parties and perused the material placed on record. 9. It is evident from the record of learned trial Court that the learned trial Court framed the charges under Section 120(B) of IPC and Section 7 and 13(2) read with Section 13(1)(d) of Prevention of Atrocities Act, 1988 and after appreciation of oral and documentary evidence, learned trial Court convicted the appellants under Sections 7 and 13(1)(d) read with 13(2) of Prevention of Atrocities Act. 10. It is not disputed in this case that at the time of incident, both the accused were posted as Senior and Upper Division Clerks in the Sub Area Manager, Surakachhar Kaliri Office, District- Korba C.G. and complainant Budga also previously posted in SECL on the post of loader and later he was dismissed from service. 8 11. Complainant- Budga (P.W.-8) stated that on the date of incident, he went to office to get his provident fund money. For which, the accused persons demanded Rs.10,000/- from him. He expressed his inability to pay the said amount, then accused persons demanded Rs.3000/- but he was not ready to pay the same. Then he borrowed money amounting to Rs.2000/-. Thereafter, he complained to CBI. He further stated that when he entered the office along with Sumaru and one CBI personnel, Neetu Babu and Umesh Babu asked him about money, then he took out the money and gave it to them. Neetu Babu said that give it to Umesh Babu. Umesh Babu said that give it to Neetu Babu. Neetu Babu took the money and counted the above money himself and gave it to Umesh Babu. When he came out and signaled the CBI people. Upon which, CBI entered the office and asked about the money. On being asked, the accused persons told that they had taken money from the complainant but the same has been returned to complainant. Upon searching, the money was not found, thereafter, CBI again asked the accused persons about the money, then accused persons told that they had thrown it out of the window of the garbage room next door. Thereafter, the money was found from the place where it was thrown. He further stated that he did not see as to where the money was recovered by the CBI. 12. In para 9, panch witness- Umakant Harikau Gokhle (P.W.-2) stated that when accused Nityanand was asked about the notes 9 taken from complainant Budhga, he told that he had taken those notes and given them to accused Umesh Kumar. On being asked about the notes, accused Umesh Kumar told that he had given the notes to Nityanand. Thereafter, on asking Nityanand, he told that he had taken that notes, but on having doubts, he gave them to complainant Budhga. When Budga was searched, notes were not found, then the accused were searched, no money was found with them either. No money was found even after searching their drawer. Subsequently, the CBI Inspector questioned the accused asking them where they had kept it, then they told that it was kept behind the window of the room. The money was thrown out of the junk room window by Nityanand. Thereafter, the CBI team went outside that window and searched for the money but they did not find it there either. Later on, he came back and searched inside the junk room among the junk and found the money there. 13. Shyam Kumar Patel (P.W.-3) stated that he was posted in the office of Provident Fund office, Surakachhar Korba Sub Area Manager in Surakachhar. On 08.11.2004 at about 4:30 pm, he was working in his office at that time 4-5 men from CBI came and asked both the accused about the money which they had taken from complainant Budga and thereafter arrested both the accused persons. The bribe money was not found from the possession of the accused persons but the same was found in junk room. Accused Nityanand did not tell anything in front of him. Prosecution declared him hostile and cross-examined him then 10 he denied this suggestion that when accused Nityanand was asked about the bribe money then he told the officers that he had thrown the money in the junk room. In para 11 of his cross-examination, he admitted that, “ यह सह ह कि स. बी. आई. वालो ने अकियक्तों अलोवा मरे म उपस्थित स मचारिरेय " तलोशी लो । यह सह ह कि तलोशी दौ&रेने ह किबीजलो गुलो ह गुई तबी यलो खदौने म पहनेने वालो टोप परे लोगुने वालो लोइटो म,गुई गुई । यह हने सह ह कि उक्तों लोइटो लोय जने बीदौ बीड़गु औरे स. बी. आई. वालो खदौ बीतचात किय कि/रे स. बी. आई. वालो ज, रूम म गुए ” । 14. Ashish Adhikari (P.W.-4) stated in para 11 that, …….CBI told that the bribe money given by Budga has not been found yet and they are searching for it. In para 12, he further stated that the CBI had called in a torchlight to search the old junk room on suspicion of hiding money and the bribe money was recovered from there. Prosecution declared him hostile and cross-examined him but he denied this suggestion that the accused Nityanand told the CBI inspector in front of him that he had thrown the bribe money in the junk room. In para 16 of his cross-examination, he admitted that on the date of incident, the CBI officer had searched all the clerks present in the office. In para 23, he admitted that he had sanctioned six days leave to accused Umesh Kumar from 01.11.2004. True copy of the application is Ex.D/1 and true copy of attendance register is 11 Ex.D/2. In para 24 of his cross-examination, he stated that according to attendance register (Ex.D/2), Umesh Kumar was on leave from 01.11.2004 to 06.11.2004. 15. Vijay Kumar Gopalan (P.W.-7) stated that on the date of incident, he was working in his office. At that time, the CBI officers came and were looking for the bribe money. At that time the light went out. The CBI officers searched the almirah, records etc. of the office room and also searched the people present in the office. Prosecution declared him hostile and cross examined him and he denied his police statement (Ex.P/12). In paras 11 and 12 of his cross-examination, he admitted this suggestion of the defence that, " यह सह ह कि स. बी. आई. वालो मझस यह प3छतछ किय कि किनेत्यने,दौ रिरेश्वात लोत ह7ए दौख ह क्य? तबी म9ने ह कि म अपने म म ब्यत नेह; दौख । यह सह ह कि म9ने यह नेह; दौख कि जह< स पस बीरेमदौ किय गुय वाह< परे पस किसने रेख ।" 16. S.I. Hussain (P.W.-9) stated that the bribe notes were recovered from the junk room. In his cross-examination, he admitted this suggestion of defence that the conversation between the accused and Budga were going on in a low voice, therefore, he could not hear it. 17. B. Paneer Selvam (P.W.-10) stated that the bribe money was recovered from the junk room at the instance of the accused persons. 12 18. Close scrutiny of statements of all witnesses makes it clear that there is no proof of any demand in this case and recovery of tainted notes was made from junk room. 19. In the matter of B. Jayaraj (supra) , Hon’ble Apex Court held in para 7 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.2 [(2010) 15 SCC 1] and C.M. Girish Babu v. CBI3 [(2009) 3 SCC 779].” 20. Again Hon’ble Supreme Court in the matter of Mukhtiar Singh (supra) held in paras 13 and 14 which are reproduced here in below:- 13. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair v. State of Kerala5; (2009) 6 SCC 587, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala v. C.P. 13 Rao6; (2011) 6 SCC 450 that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 14. In P. Satyanarayana Murthy2; (2015) 10 SCC 152 this Court took note of its verdict in B. Jayaraj v. State of A.P.7; (2014) 13 SCC 55 underlining that 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 Murthy2; (2015) 10 SCC 152 on a survey of its earlier decisions on the pre-requisites 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 b gratification would be fatal and 14 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." (emphasis supplied) 21. This Court in the matter of Shivprasad Kuldeep (supra) held in paras 14, 15 and 16 as under:- “14. in (2009) 3 SCC 779 (C.M. Girish Babu v. CBI, Cochin, High Court of Kerala), the Supreme Court held thus: "18. In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) 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." 15. Further, in (2014) 13 SCC 55 (B. Jayaraj v. State of Andhra Pradesh), it was held by the Supreme Court 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 15 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. 9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d) (i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent." 16. Recently, in (2021) 3 SCC 687 (N. Vijayakumar v. State of Tamil Nadu), reiterating the judgment of C.M. Girish Babu case (supra) and B. Jayaraj case (supra), it was held by the Supreme Court as follows: "26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI, (2009) 3 SCC 779 and in B. Jayaraj v. State of A.P., (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case 16 under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.” 22. In light of above, in the present case, it is quite vivid that there is no proof of demand as it appears that the currency notes were recovered from junk room and statements of panch witnesses and investigating officer are contradictory to each other and other present witnesses did not support the prosecution case. It is also clear that the complainant stated in his application that the demand was made on 06.11.2004 but as per Ashish Adhikari (P.W.-4), accused Umesh Kumar was on leave on 06.11.2004 and the said fact is evident from Ex.D/1 and Ex.D/2. Thus, the prosecution has failed to prove the demand and acceptance of bribe by the appellants from the complainant beyond reasonable doubt. 23. For the above reasons, both the appeals are allowed. The 17 conviction and sentence awarded to the appellants under Sections 7, 13(1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 are hereby set aside. The appellants are acquitted of the charges framed against them. 24. The appellants are reported to be on bail. Keeping in view the provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), the appellants are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- each with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 25. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) Judge Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV