1 2025:CGHC:21512 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Jugment Reserved on: 05/03/2025 Judgment Delivered on: 08/05/2025 CRA No. 87 of 2016 1 - Ashok Kumar Kannoje S/o Late Mool Chand Aged About 49 Years Assistant Grade -3 Deputy Director, Udyaniki, Janjgir-Champa Permanent Address Netaji Chowk, Bazar Para, Chakiyar Gali Jangir, District Janjgir Champa Chhattisgarh. At Present Posted At Sukma District Dantewada Chhattisgarh. , Chhattisgarh ... Appellant(s) versus 1 - State of Chhattisgarh Through A.C.B. Bilaspur, District Bilaspur Chhattisgarh. , Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Ashutosh Trivedi, Advocate. For Respondent(s) : Mr. Atanu Ghosh, Dy. Govt. Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 1. The present appeal arising out of the impugned judgment of conviction and sentence dated 29.12.2015 passed by learned Special Judge (Prevention of Corruption Act Janjgir-Champa, District Janjgir-Champa) in Special Criminal Case No. 06/2012, whereby the appellant has been convicted and sentenced in the following manner :- Conviction Sentence Under Section 7 of Prevention of Corruption Act, 1988. RI for one years, fine of Rs. 2,000/- in default of payment of fine further RI for 02 months. Under Section 13(1)(d) of Prevention of RI for one years, fine of Rs. 3,000/- in default of 2 Corruption Act, 1988. payment of fine further RI for 03 months. Both the sentences shall run concurrently except the RI for the default of payment of fine amount. 2. The brief facts of the case are that the complainant Uttara Kumar Bhardwaj (PW-3) was employed as gardner at Horticulture Centre, Akaltara and was posted at Putpura Nursary. The appellant was posted as Assistant Grade-III in the Office of Assistant Director Horticulture, Janjgir at the relevant point of time. The complainant had submitted an application for grant of NOC from the office of Assistant Director Horticulture, Janjgir as he applied for grant of personal loan for Rs. 1,50,000/- from State Bank of India and he submitted his application form on 02.06.2009. The appellant had demanded Rs. 500/- as bribe to get it signed by drawing disbursing officer. The complainant had made a written complaint to the Anti Corruption Bureau, Bilaspur. On 05.06.2009 on which the complainant was provided a micro cassette recorder to get the conversation recorded between the appellant and the complainant. On 06.09.2009 the conversation between the appellant and the complainant was recorded and he handed over the said micro cassette recorder to the officer of ACB on 09.06.2009. On 10.06.2009 the complainant has made his second written complaint and the cassette with respect to the recording of their conversation. After hearing the conversation, the FIR has been registered and transcript of the said conversation was prepared and original cassette was seized. A trap party was constituted, the complainant had produced Rs. 500/- in the form of 5 currency notes of 100 denominations as the bribe money. The necessary panchnama were prepared. The phenolphthalein power were applied in the currency notes and it was kept in the left pocket of the shirt of the complainant and convinced that he would touch the same only at the time of giving it to the appellant. The manner of handing over the amount to the appellant was convinced to the complainant. The necessary panchnama with respect to the wash of the hands of the 3 witnesses were prepared. Another micro cassette was given to the complainant to record their conversation at the time of handing over the bribe money to the appellant. On 10.06.2009 the trap party along with the panch witnesses have proceeded to the office of Assistant Director Horticulture Janjgir, District Janjgir-Champa and they reached there at 13:30 hours. The witnesses have taken their position and the complainant had gone inside the office room of the appellant and handing over tainted currency notes to the appellant which was kept by him in his purse kept in the back pocket of his pant. The post transaction gesture have been made by the appellant and then the members of the trap party entered into the office room of the appellant and after giving their introduction they caught hold him and then the search and seizure proceedings were conducted. The handwash of the appellant was turned into the pink colour and the solutions were seized. On being search, the tainted currency notes was seized from the purse of the appellant which was kept in his pocket. The serial number of the currency were tallied from the panchnama, the colour of the solution in which the currency notes were dipped was also turned into pink colour. The panchnamas of all the proceedings and seizure of solutions were made in presence of the witnesses. The spot map was prepared by the Patwari. The seized solutions and powder were sent for its chemical examination to State FSL Raipur. The sanction for prosecution was obtained from the concerned department. After completion of usual investigation charge-sheet was filed against the appellant for the offence under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 before the learned trial Court. 3. The learned trial Court has framed charge against the appellant for the offence under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The appellant denied the charge and claimed trial. 4 4. In order to prove the charge, the prosecution has examined as many as 10 witnesses. Statement of the appellant under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances appears against him plead innocence and have submitted that he has been falsely implicated in the offence. In the defence the appellant himself examined as the defence witnesses. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of this judgment. Hence this appeal. 6. Learned counsel for the appellant would submit that the judgment of conviction and sentence passed against him is illegal and erroneous. There is no cogent and clinching evidence to convict him for the alleged offence. There is no demand by the appellant. From the alleged conversation there is no ingredients of any offence of demand or acceptance. There is no voice frequency test conducted by the prosecution to prove that it was the conversation between the appellant and the complainant as there is no voice analysis test. There is no certificate of Section 65-B of the Evidence Act in the case. The transcript prepared by the authority is also not clear there are material omissions and contradictions in the evidence of the complainant as well as other panch witnesses. In absence of any demand or acceptance, mere recovery is not sufficient to hold the appellant guilty for the alleged offence. The appellant was not the authority to grant NOC and there is no reason to make any demand or accept the bribe from the complainant. Therefore, the prosecution has completely failed to prove the charges against the appellant and the appellant is entitled for acquittal. 7. Per contra, learned counsel appearing for the State supported the impugned judgment and submits that from the evidence adduced by the prosecution, the demand as well as acceptance has duly been proved. There is sufficient 5 evidence on record to prove that the appellant has demanded Rs. 500/- against providing NOC and getting it signed by the Assistant Director of Horticulture for which he accepted bribe money from the complainant. He further submits that but for minor omissions and contraction the evidence of the prosecution witnesses are fully reliable. The recovery has also been proved by the prosecution that the tainted currency notes were found in possession of the appellant which gives presumption against him that it was accepted in lieu of illegal demand as bribe, therefore, the judgment of conviction and sentence passed by learned trial Court is justified and needs no interference. 8. I have heard learned counsel for the parties and perused the record of the concerned trial Court. 9. Before considering the facts and evidence of the present case it is necessary to deal with the requirement of 3 necessary conditions in case of illegal gratification which are (i) demand (ii) acceptance (iii) recovery. 10. In case of Mukhtiar Singh (Since Deceased) through his legal representatives Vs. State of Punjab, reported in (2017) 8 SCC 136 it was held by the Hon'ble Supreme Court that:- “15. In P. Satyanarayana Murthy [(2015) 10 SCC 152], this Court took note of its verdict in B. Jayaraj V. State of A.P [(2014) 13 SCC 55]. 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 (supra) 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: "23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i) and 6 (ii) of the Act and in absence thereof, unmistakably the charge therefore, 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.” 11. 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. Para 10 of the above judgment is quoted as below: “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.” 12. In the case of B. Jayaraj v. State of A.P. reported in (2014) 13 SCC 55 it was held by the Hon’ble Supreme Court in para 7 that mere recovery of currency notes cannot prove the offence which reads 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). 13. In the 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 which reads 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 was chronologically proved as against the appellant. In the light of our above conclusion 7 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.” 14. In the case of Sejappa v. State reported in (2016) 12 SCC 150 it was held by the Hon’ble Supreme Court in paras 10 & 21 which reads 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. 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).” “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, 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.” 8 15. Recently 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 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 9 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. 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.” 16. Reverting to the facts of the case, the complainant PW-3 has stated in his evidence that 2 - 2½ years back the appellant demanded Rs. 500/- from him in case of his personal loan, thereafter, he made a complaint to the Anti Corruption Bureau which is Ex.P/7. He made his complaint on 10.05.2009. After about one week he gave Rs. 500/- to Anti Corruption Bureau in which chemical powder was applied. The same was kept in his pocket and they instructed him the manner in which he has to act while handing over the same to the appellant. When they had gone to the office of the appellant, he handed over the tainted currency notes to him and then he returned back. At the moment, the officers of the Anti Corruption Bureau caught hold the appellant and seized the tainted note from him. The panchnama Ex.P/9 with respect to the trap of recording, the FIR Ex.P/2, panchnama with respect to the serial number of currency notes, and the other panchnamas during the trap proceedings were prepared in which he has signed. After the incident, the officers of Anti Corruption Bureau have not inquired anything from him. At 10 this stage he declared hostile and cross-examined by the prosecution. He stated that the officers of Anti Corruption Bureau had obtained his complaint twice. When he made his complaint first time to the Anti Corruption Bureau, he provided a tape recording of the conversation with the appellant. The tape recording in which the conversation was recorded was given to him by the Anti Corruption Bureau which was also seized. In cross-examination he stated that at the time of recording of his statement, he disclosed before the ACB authorities that the appellant has demanded bribe with respect to his loan case and if it is not there in his statement Ex.D/1, he could not tell the reason. On 10.06.2009 he was called by the officers of Anti Corruption Bureau, if it is also not there he could not tell the reason. It is also stated by him that at the time of recording of his statement Ex.D/1, he disclosed before the authorities that he asked the appellant to keep Rs. 500/- which was demanded by him and if it is not there in his statement Ex.D/1, he could not tell the reason. Further the return of the document by the appellant to him is also not there in his statement Ex.D/1. 17. In further cross-examination he stated that he did not know as to whether the appellant was incharge of establishment cell of the horticulture department or not. He admitted that his elder brother was the inspector at Anti Corruption Bureau, who is presently retired. He further stated that when he visited the office of Anti Corruption Bureau first time, the officers of the Anti Corruption Bureau instructed him to hold the complainant and on his instruction the complaint was written. The second complaint Ex.P/8 was also written on his instances. The appellant demanded Rs. 500/- on 09.06.2009 first time and at that time no one is there in his office room. On 09.06.2009 when he made conversation with the appellant and get it recorded in which tape recorder the co-employee Rajesh Shukla was also present there. But he denied that the conversation was in the office of Rajesh Shukla. The tainted currency notes was taken out by the DSP Pathak from the pocket of the shirt of the 11 appellant. He denied that he repaid Rs. 500/- which he borrowed from the appellant. He also denied that the appellant was having no authority to deal with the file. 18. PW-1, Lochan Pandey is the Inspector posted at ACB, Raipur who registered the FIR Ex.P/4. 19. PW-2, Manoj Ambust is the Patwari who prepared the spot map Ex.P/6. 20. PW-4, I.A. Siddiqui who is the Sub Divisional Officer at Water Resources Department is the Panch witness who stated in his evidence that on 09.06.2009 he was being called to the office of ACB, Raipur. When he reached there, he was being introduced by the other members of the trap party. The complaint Ex.P/8 was also produced before them and they verified from the complainant and thereafter they also made their counter signature on the complaint Ex.P/8. The complainant had produced the 5 notes of 100 denominations in which the employee of the ACB had applied the chemical powder. Prior to that panchnama of its serial number was prepared. The complainant was convinced about transaction of handing over the currency notes to the appellant and preliminary panchnama Ex.P/15 was prepared. The necessary panchnanas of solutions of other process of trap party were prepared. The talashi panchnama of the witnesses was also prepared which is Ex.P/27 and then they proceeded toward the office of the appellant. The witnesses had taken their position and after few minutes, the complainant made a gesture about transaction and then they reached to the office room of the appellant and caught-hold him. On being searched, the tainted currency notes were recovered from the purse of the appellant and the same was tallied by its serial number. The hand wash were turned into pink color. The seizure memo Ex-P/28 was prepared and the solution were also seized. the seized memos Ex-P/9, Ex-P/16, Ex-P/17 and Ex-P/13 was prepared. After the entire proceeding of trap, the inventory was prepared which is Ex- P/26 and the appellant was arrested. In cross-examination he stated that on 12 09.06.2009 when he reached to the ACB Office, he was asked to come on the next day 10.06.2009. He admitted that after reading the complaint Ex- P/8, he came to know that the appellant was not competent to deal with the file with respect to the loan sanctioned of the employee and the same is with the higher authorities. He further admitted that since he was outside of the room of the appellant, he did not know as to what transpired inside the room and what conversation they had made. He further admitted that at the time of trap proceeding the appellant was saying that he had not demanded any money from the complainant and he is being falsely implicated in the offence. The appellant was also saying that the complainant borrowed the amount which he had repaid. 21. PW-5, Kashi Ram Bhuarya, is the Constable, posted at Anti Corruption Bureau, Bilaspur. He applied the phenolphthalein powder in the five notes of 100 denominations under the instructions of officers of Anti Corruption Bureau and kept it in the left pocket of the shirt of the complainant. In cross- examination, he admitted that since he was posted at the office of Anti Corruption Bureau since last 20 year, therefore, he usually be the part of trap party and having knowledge of the trap proceeding. 22. PW-7, A.R. Banjare, is the Deputy Conservator of Forest is another witness of trap party who stated in his evidence that on 09.06.2009, when he appeared in the office of Anti Corruption Bureau, the other witnesses and the complainant was present there. All of them were introduced and he verified the complaint Ex-P/8. The conversation was also heard by them and thereafter he was being asked to come in the next day. On 10.06.2009, when they reached to the office of ACB, Bilaspur the chemical powder was applied in the five notes of 100 denominations and necessary panchnamas were prepared in their presence. The number of currency notes were also recorded. He further stated that he could not remember as to whether the Talashi of the complainant was taken or not. DSP Anil Pathak had made a 13 plan that after going to Janjgir Office, tainted currency notes is to be given to the appellant Kannoje, if he accepted the same then the further proceeding will be drawn. They proceeded to the office of the appellant at Janjgir, they take their positions and standing outside of the office of the appellant at the distance of 25 - 50 meters. The place where they were standing, they could not see the internal affairs of the office. Bharadwaj had gone inside the office and immediately after 2 minutes, he came and made the gesture then the entire team entered into the office room. He too have entered into the office of appelant along with other members of the trap party. The Constable had taken Talashi of the appellant and taken out a purse from the pocket of the pant of the appellant and recovered the five currency notes of 100 denominations which are the tainted currency notes. The numbers were tallied from the panchnamas and seizure memo Ex-P/28 has been prepared. The hand wash of the appellant was turned into pink color, the wash of the purse was also turned into pink color. The hand wash of the Constable who searched and seized the tainted currency notes was also turned into pink color, all these solutions were seized vide seizure memo Ex-P/29. The other documents have been seized vide seizure memo Ex-P/30 and Ex-P/17. He witnessed the entire search and seizure proceedings. In cross-examination, he stated that he did not know as to whether the appellant was authorized to sanction the loan to the complainant or not even after read over the complaint Ex-P/8, he has not asked about anything from them. The tape recorder which he heard, was taken by Bharadwaj which has been disclosed by DSP Pathak. When he reached to the ACB Office, the tape recorder was already there. He admitted that he could not identify the voice of tape recorder there is no panchanama prepared with respect to the hearing of the voice in the tape recorder. He further admitted that they were standing outside of the office room of the appellant and the internal affairs of the office 14 room was not visible. He admitted that the appellant was saying that he has not demanded any bribe and he has been falsely implicated in the offence. 23. PW-8, S. R. Diwan, is the Inspector of Police, posted at Anti Corruption Bureau, Bilaspur, at that time. He stated in his evidence that on 05.06.2009, DSP Mr. Pathak had forwarded the complaint Ex-P/7 to him for further action. He had given a tape recorder including the cassette to the complainant to get the conversation recorded in it and a panchanama Ex- P/9 was prepared. On 09.06.2009, the conversation which was recorded in the tape recorder was produced by the complainant to the office of Anti Corruption Bureau. After its seizure two panch witnesses were called who came on 10.06.2009 and before whom the complainant has submitted his second complaint to take action against the appellant. On second complaint the FIR was registered and trap party was constituted, thereafter, both the complaints of the complainant were produced before the witnesses of trap party. After verifying the complaint, they gave their consent. They also verified from the complainant and after his approval, the complainant gave five currency notes of 100 denominations and phenolphthalein powder was applied in the said currency notes by Om Prakash Soni, Peon. The tainted currency notes were kept in the pocket of the complainant and he was convinced about the transaction. The necessary panchanama of hand-wash as well as proceeding were prepared. The hand-wash was seized and they proceeded towards the office of the appellant at about 11.30 a.m. Another tape recorder was given to the complainant to get the conversation recorded at the time of handing over the amount of bribe. The members of the trap party were also followed the complainant and they take their position outside of the office room of the appellant. After completion of the transaction, the complainant came out from the office and make gesture then the members of the trap party entered into the office room and caught-hold the hands of the appellant. The hand-wash of the appellant was turned into pink color. The 15 wash of the currency notes as well as purse were also turned into pink color which were seized and sealed separately. The trap panchanama of the entire proceeding was prepared and the seized articles were sent to FSL for its chemical examination. Spot map was prepared by the Patwari. The tape recorder panchanama Ex-P/9 was prepared by him. The second complaint of the complainant is Ex-P/8 and on the basis of the second complaint, the FIR Ex-P/2 was registered. He has prepared the transcription which is Ex- P/32, preliminary panchanama Ex-P/15 was prepared. Talshi Panchanama Ex-P/27 was prepared. The specimen seal was also seized vide seizure memo Ex-P/29. The documents have been seized from the complainant vide seizure memo Ex-P/17 and the documents are Ex-P/18 to Ex-P/25. He recorded the statement of the witnesses on their own version. In cross- examination, he stated that on 10.06.2009, the complainant has made a complaint as well as tape recorder to the Anti Corruption Office. He admitted that from the Protocol Office, Bilaspur, the notice was issued to the panchanama witnesses on 08.06.2009. He admitted that in the transcript Ex- P/32, there is no signature of any other person except him. He denied the preparation of transcript Ex-P/32 on the basis of the conversation available in the tape recorder. He has not made Sushil Kumar Dhruw as the witness who accompanied the complainant at the time of alleged incident. he too have admitted that the place where they were standing outside of the office of the complainant, the inner part of the office was not visible. The statement of the appellant which he has recorded during the investigation is not produced by him along with the charge-sheet. He further admitted that during the investigation, it was not revealed that the appellant was in charge of the concerned department or not. He further stated that he could not tell as to from where the complainant received the document which he has seized vide seizure memo Ex-P/17 and from where the complainant get those documents. He further admitted that as per the seized document Ex-P/21, 16 the documents of the complainant have already been signed by the authorities with respect to the no objection certificate. He further admitted that at the time of trap proceeding there was no work of the complainant pending before the appellant. He also admitted that the transcript had not been prepared on the basis of the cassette with respect to the transaction of the bribe. He also admitted that in the trap proceeding panchanama Ex-P/26, there is no endorsement that the conversation of the tape recorder was being heard by the panch witnesses. He also admitted that the statement of the witnesses have been recorded later on and their statement have been recorded in the office of Anti Corruption Bureau. 24. PW-10, Anil Kumar Pathak was the Dy. Superintendent of Police, posted at Anti Corruption Bureau, Bilaspur. He stated in his evidence that the complainant had made a written complaint to him that the appellant is demanding bribe of Rs. 500/- and his complaint is Ex-P/7. He forwarded the complaint to the Inspector Diwan for further action. On 10.06.2009, the complainant had made a second complaint Ex-P/8 before him. The said complaint was given to the panch witnesses for its verification. He sent the seized articles to FSL Raipur, from where report Ex-P/34 was received. He constituted the trap party and deputed Mr. S.R. Diwan, Inspector to investigate into the matter. In cross-examination, he admitted that in the application of the complainant, it has been mentioned that the NOC is required for personal loan from drawing disbursing officer. He further admitted that the appellant is not the drawing disbursing officer but he voluntarily stated that the appellant was the custodian of the file. He further admitted that he has not sent the cassette to any specialist for its examination. He further admitted that he has not filed any certificate under Section 65 of the Evidence Act. 25. In the instant case there is no clinching evidence with respect to the fact of demand as to when the appellant has demanded the amount of bribe from 17 the complaint, no date has been disclosed by the complainant in his evidence about the demand made by the appellant. PW-10, Anil Kumar Pathak, have stated that on 05.06.2009, the complainant made a complaint to him about the demand of bribe by the appellant and on 10.06.2009, the complainant made a second complaint to him, whereas the complainant have not stated about his complaint dated 05.06.2009. As per the evidence of the complainant PW-3 Uttara Kumar Bhardwaj, he stated that on 10.06.2009. He made a complaint to the Anti Corruption Bureau and after about a week he gave Rs. 500/- to Anti Corruption Bureau and then trap party was constituted. In his entire evidence nothing is there about any complaint on 05.06.2009. Even if it is taken that on 09.06.2009, he made a complaint to the Anti Corruption Bureau and tape recorder was given to him to get conversation recorded between him and the appellant, the said tape recorder was produced on 09.06.2009. What the complainant did from 05.06.2009 to 09.06.2009 has not been disclosed by him. There is no investigation with that respect. The complainant in para-15 of his evidence stated that the appellant has made demand of Rs. 500/- as bribe first time on 09.06.2009 whereas he has already made a complaint on 05.06.2009 as has been deposed by PW/8 S.R. Diwan and PW/10 Anil Kumar Pathak. The complainant further confirms that in para 19 of his evidence that he made conversation with the appellant first time on 09.06.2009 which was recorded in the tape recorder which was given to the Office of Anti Corruption Bureau where the tape recorder has been seized on 09.06.2009 whereas prior to that on 08.06.2009 the trap party was already constituted and panch witnesses have already summoned. When the complaint was made on 05.06.2009. On 09.06.2209 the tape recorder was submitted, how the panch witnesses have been summoned on 08.06.2009 without verifying the compliant or without hearing the conversation allegedly recorded in the tape recorder. If any complaint was genuine which was allegedly made on 05.06.2009, immediately thereafter 18 the trap party ought to have been constituted. Further the witnesses have admitted that the appellant was not authorized to issue no objection certificate and before the trap proceeding, no objection certificate was already signed by the Assistant Director, Horticulture, and no work was pending with the appellant with respect to no objection certificate to the complainant. 26. The appellant himself has examined as the defence witnesses who stated that the complainant has return the borrowed amount of Rs. 500/- at the time of trap proceeding. He disclosed the officers of Anti Corruption Bureau that it is not the bribe amount but it is the refund of his borrowed amount yet he has been implicated in a case. He made a complaint to the Officers of ACB for proper investigation into the matter which is Ex.D/1. The complainant was a gardner at that time and engaged at Horticulture Department, Kurkura, he made an application for personal loan in which no objection from the Assistant Director was required. The file of the complainant was dealt with by the Section incharge. He denied that he was posted at the establishment section of the office. He also denied that he demanded the bribe from the complainant to get his application signed by the Assistant Director. 27. The conversation is said to have been recorded on 09.06.2009 whereas the tape recorder was handed over to him on 05.06.2009 which was returned back to the officers of the Anti Corruption Bureau on 09.06.2009. What transpires between 05.06.2009 to 09.06.2009 and the said tape recorder was kept in safe custody or there was no tempering in voice recorder has not been proved by the prosecution. Further there is no voice sample of the appellant to connect the appellant with the said conversation. 28. 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 the tape recorded statement is admissible in evidence if the voice of the speaker is identifying by the maker of record and other persons 19 recognizing his voice. In paragraph 12 of the judgment, it has been held as under; "12.On the issue of evidentiary value and credibility of the recording in the case of trap, the law is wellsettled in the case of Ram Singh v. 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 taperecorded 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 taperecorded 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 or disturbances, otherwise, the transcript as prepared, is inadmissible in evidence.” 29. 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 Ashok Kumar Kannoje, therefore, possibility of the tempering with the tape recorder and alleged conversation cannot be ruled out. Further in absence of certificate under Section 65-B of the Evidence Act, evidence of a voice recorder is not admissible as held by Hon'ble Supreme Court in Sanjay Singh Ramrao Chavan vs. Dattatray Gulabrao Phalke and Others, 2015 (3) SCC 123 in paragraph 16 of the said judgment, the Hon'ble Supreme Court has held as under:- “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.” 30. The other requirement to prove the offence of illegal gratification is the recovery of tainted money. Mere recovery of tainted money alone cannot be the sole ground for conviction as held by Hon’ble the Supreme Court in 20 Krishan Chander Vs. State of Delhi, 2016 (3) SCC 108, wherein it has been held as under: “35. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant. 36. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus: “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. and C.M. Girish Babu v. CBI.” (emphasis supplied) 37. In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under: “21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, 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. 22. In a recent enunciation by this Court to discern the imperative pre- requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded 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. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or 21 forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, 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.” (emphasis supplied)” 31. On the minute examination of evidence led by the prosecution, it is quite clear that with regard to the initial demand, there are material contradictions in the statement of the complainant PW-3 Uttra Kumar Bhardwaj and other witnesses. Even the complainant has not supported his entire complaint and deposed altogether different story with regard to the demand made by the appellant. He has made a compliant on 05.06.2009 whereas in his deposition he stated that the appellant first time demanded the bribe on 09.06.2009. 32. Although the other persons were also present, but the prosecution has examined none of them. On the date of alleged incident, the no objection certificate was already issued by the Assistant Director and work of the complainant was pending. Further there is no evidence that the appellant was dealing with the clerk of the file of the complainant. He neither incharge of the file nor in nay manner authorized to deal with the file. Only recovery of the tainted amount from the appellant would not be sufficient to hold him guilty for the alleged offence. There are various components which are lacking to prove the guilt of the appellant beyond reasonable doubt and the evidence of the prosecution witnesses are shaky which cannot be relied upon to convict the appellant in the offence, therefore, in the considered 22 opinion of this Court the prosecution has not been able to prove its case beyond reasonable doubt. 33. Consequently, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence is set aside. The appellant is acquitted from all the charges framed against him. The appellant is reported to be on bail. His bail bond shall continue for a further period of six month as provided under Section 481 of B.N.S.S., 2023. 34. The trial Court record along with a copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.05.26 15:14:28 +0530