1 2025:CGHC:13199 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 423 of 2016 1 - Sukhdeo Dhruv S/o Shri Budhuram Dhruv Aged About 42 Years Working As A Patwari Halka No. 28/52, Head Quarter - Village - Kharenga, District Dhamtari Chhattisgarh. Present R/o Amatalab Road, Dhamtari, Post Office And Police Station Dhamtari, District Dhamtari Chhattisgarh. , Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through Anti Corruption Bureau, Raipur, District Raipur Chhattisgarh. , Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Goutam Khetrapal, Advocate. For Respondent(s) : Ms. Isha Jajodiya, Panel Lawyer. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 19/03/2025 1. This appeal arises out of the impugned judgment of conviction and sentence dated 23.02.2016 passed by learned Special Judge (Prevention of Corruption Act), Dhamtari, in Special Criminal Case No. 02/2008, whereby the appellant has been convicted and sentenced as under:- Conviction Sentence Under Section 13(1)(D) read with Section 13(2) of Prevention of Corruption Act, 1988. R.I. for 04 years and fine amount of Rs. 1000/- and in default of payment of fine amount additional R.I. for 03 months. 2 Under Section 7 of Prevention of Corruption Act, 1988. R.I. for 04 years and fine amount of Rs. 1000/- and in default of payment of fine amount additional R.I. for 03 months. Both the sentence to run concurrently and fine amount has already been deposited. 2. Brief facts of the case are that the appellant was working as a patwari and was posted at Patwari Halka No. 28/52, Village Kharanga, District Dhamtari. He demanded Rs. 3800/- from the complainant Shiv Kumar Dahariya for the separation of the holding and partition of the lands, which was illegal gratification. On 06.01.2007, the complainant made a written complaint Ex.P/21 to the Anti-Corruption Bureau, Raipur, alleging that the appellant is demanding bribe of Rs. 3800/- for the separation of his holding. The Officers of the Anti-Corruption Bureau gave him a tape recorder to get the conversation between the appellant and the complainant recorded. When he again met with the appellant, he demanded Rs. 5000/- and asked him to come on 11.01.2007 along with the bribe amount at Village Kharanga. On 11.01.2007, he made his second written complaint Ex.P/3 to the Superintendent of Police Anti Anti-Corruption Bureau, Raipur. He also handed over the tape recorder to the Officer of Anti Anti-Corruption Bureau, and after verification, the conversation recorded in it, the transcript was prepared. The trap party was constituted, and panch witnesses were called. Preliminary trap panchnama was prepared. The complainant handed over Rs. 3800/- to the Officers of Anti Anti-Corruption Bureau. The phenolphthalein powder was applied on the currency notes, and after preliminary proceedings of the trap, the trap party proceeded towards the office of the appellant. After handing over the bribe amount to the appellant, the complainant made gesture about the completion of the transaction, and then the members of the trap party entered the office of the appellant and caught him hold. The hand-wash of the members of the trap party was not 3 changed, whereas the hand-wash of the complainant as well as the appellant was changed and turned into pink colour. On the instance of the appellant, the tainted currency notes were seized, which were kept under a brick. The serial numbers of tainted currency notes were tallied with the panchnama. The seized currency notes were also washed, and the colour of the solution turned into pink colour. The solutions were seized separately and sent for chemical examination to the FSL, Raipur, from where the positive report has come. After holding the due procedure of investigation and various seizures, recording statements of the witnesses, the FIR Ex.P/4 was registered against the appellant for the offence under Section 7 of the Prevention of Corruption Act, 1988. The appellant was arrested and after due process of investigation charge-sheet was filed before the learned trial Court for the offence under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. 3. The learned trial Court has framed charge against the appellant for the offence under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The appellant denied the charge and claimed trial. 4. In order bring home the charge, the prosecution examined as many as 13 witnesses. Statement under Section 313 of Cr.P.C. of the appellant was also recorded in which he denied the circumstances that appear against him, pleaded innocence and submitted that he neither demanded any bribe from the complainant nor accepted the same. The work of partition of holding is not under his jurisdiction, but it was under the jurisdiction Nuzul Officer and Tahsildar, and he could get it executed only after orders from them. Four defence witnesses have been examined by the appellant in his defence. 5. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence, this appeal. 4 6. Learned counsel for the appellant would submit that the prosecution has failed to prove it case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made the basis to convict him for the alleged offences. The demand has not been proved in the case, and there is no demand by the appellant from the complainant. The appellant had no jurisdiction to get the holding separated, and he could have done only after orders of the Tahsildar or Nazul Officer, therefore, there was no occasion to demand the bribe from him. He would further submit that from the conversation on the tape recorder, it has not been proved that the voice recorded on the tape recorder is the voice of the appellant, and it was the conversation between the appellant and the complainant. There is no voice analysis report, and no voice frequency test has been conducted by the prosecution. The transcript prepared by the Officers of the Anti-Corruption Bureau is also doubtful and is not clear. He would also submit that there were no independent witnesses at the time of handing over the bribe amount to the appellant. The members of the trap party were not given their own search to the appellant. The transcript/tape recorder did not prove the demand and acceptance of tainted money. Mere recovery of the tainted currency notes cannot be a ground of conviction of the appellant. The prosecution has failed to prove its case beyond reasonable doubt, therefore, the appellant is entitled to acquittal. 7. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt. The case of the prosecution is proved by shadow witnesses and other panch witnesses. From the evidence of prosecution witnesses, the demand as well as acceptance has been duly proved. There is sufficient evidence on record to prove that the appellant has demanded Rs. 3800/- from the complainant as illegal gratification in lieu of the separation of holdings of the complainant in the revenue documents. He would further submit that the recovery of the 5 tainted currency notes has also been proved by the prosecution, and the same was found in possession of the appellant, which gives a presumption against him that it was accepted in lieu of illegal demand as bribe. The minor omissions or contradictions in the evidence of prosecution witnesses do not dilute the entire case of the prosecution, therefore, the impugned judgment of conviction and sentence passed by the learned trial Court is justified and needs no interference. 8. I have heard learned counsel for the parties and perused the record of the trial Court. 9. In the case of illegal gratification, there are three essential ingredients to constitute the offence, i.e. (i) demand, (ii) acceptance and (iii) recovery. 10. In the case of Mukhtiyar (since deceased) through his Legal Representative Vs. State of Punjab, reported in 2017 (8) SCC 136, it has held by the Hon’ble Supreme Court as under:- “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 Kerala (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. Rao (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.” 11. In the present case, the complainant Shiv Kumar Dahariya, PW-11, has stated in his evidence that he was having certain lands at village Nawagaon, which were recorded in the revenue records in the name of his father, Sukho Ram Dahariya. The partition between him and his brother took place, and the land of the village Nawagaon came in his share for which he approached the appellant for separation of the holding, and then the appellant demanded Rs. 6 5000/- as bribe, but it was settled for Rs. 3800/-. He was not willing to give the bribe to the appellant and therefore he made a written complaint (Ex.P/21) to the Anti-Corruption Bureau, Raipur on 06.01.2007. The Officers of the Anti-Corruption Bureau gave him a micro tape recorder for recording the conversation between him and the appellant, and a panchnama Ex.P/5, was prepared. After the conversation, the appellant called him on the 11th date at his office along with the bribe amount. He handed over the micro tape recorder to the Officer of the Anti-Corruption Bureau, where the transcript Ex.P/7 was prepared. The police have seized the micro cassette from him vide seizure memo Ex.P/8. On 11.07.2007, he again made a written complaint Ex.P/3 to the Officers of Anti Anti-Corruption Bureau. The panch witnesses have made a search of him and a panchnama Ex.P/9, was prepared. Another micro tape recorder was given to him for recording the conversation at the time of handing over the bribe amount and panchnama Ex.P/10 was prepared. He had given Rs. 3800/- to the Officers of the Anti- Corruption Bureau, in which 7 currency notes of 500/- denomination and 3 currency notes of 100/- denomination. Chemical power was applied in the currency notes by the constable, and it was kept in his pocket of the pant and convinced him about the manner of transaction. The preliminary trap panchnama Ex.P/11 was prepared. The hand-wash of the constable who applied the phenopthalein powder on the currency notes turned into pink colour, which was seized and sealed. Thereafter, they proceeded towards the office of the appellant. The members of the trap party hide themselves, and he entered the office of the appellant. After a conversation of 10 – 15 minutes with the appellant, he handed over the tainted currency notes to the appellant and came out of the office of the appellant and made the gesture to the members of the trap party. They entered into the office of the appellant, and after their introduction, they enquired about the tainted currency notes. The appellant kept the tainted currency notes under a brief kept on the bags of 7 paddy. The hand-wash of the members of the trap party was not changed, whereas the hand-wash of the appellant was turned into pink colour. The hand-wash was separately sealed and seized. The transcript Ex.P/14 was also prepared, which was the conversation between him and the appellant at the time of handing over the bribe amount. The cassette was seized vide seizure memo Ex.P/15. Spot map Ex.P/1 was prepared by the Patwari. 12. In cross-examination, he admitted that he had not mentioned in his complaint Ex.P/21 as to which date he met with the Patwari and when he called him. The Officers of the Anti-Corruption Bureau had informed him that the cassette was blank, but he had not heard the cassette. There is no deed of any partition between them. Patwari has informed him that the partition of the holding cannot be done without the order of the Tahsildar. He could not remember as to whom he handed over the currency notes in the office of the Anti-Corruption Bureau, and in which pocket he kept the same. He has not made any search of the members of the trap party. He admitted that when he entered into the office of the Patwari, 2 - 3 other persons were also present there. He stayed there for about half an hour, and thereafter he handed over the tainted money to him. Immediately after handing over the amount to the Patwari, he made gesture to the members of the trap party about the completion of the transaction. He admitted that on being searched of the Patwari, the tainted amount had not been recovered from him, and police officers started searching for the bribe amount. He informed the police officers that he had already handed over the amount to the Patwari, and how it has been found in the bags of paddy that he did not know. He further stated that at the time of preparing the transcript, Ex.P/7, some part of the conversation of the tape recorder was not clear. 13. From perusal of the written complaint Ex.P/21, there is no mention of the trap that the Patwari had demanded Rs. 5000/- as bribe and it was settled for Rs. 3800/- but it has been mentioned in the complaint that the appellant has 8 demanded Rs. 3800/- as bribe. From his second complaint, Ex.P/3, it has been mentioned that when he met with the appellant for the second time, he demanded Rs. 5000/- instead of Rs. 3800/- and called him on 11.01.2007. Since he could arrange only Rs. 3800/-, he handed it over to the officers of the Anti-Corruption Bureau. There are contradictions in the amount of the bribe settled between the appellant and the complainant as alleged. In the first complaint Ex.P/21, the complainant have stated that the appellant has demanded Rs. 3800/- as bribe whereas in the second complaint Ex.P/3 he stated that the appellant demanded Rs. 5000/- and since he could arrange only Rs. 3800/- he had given the same to the Officers of Anti Corruption Bureau. When the demand was made or when the conversation between him and the appellant was recorded is not there in the complaints. Further, the complainant PW-11 has stated that when he contacted the appellant, he demanded Rs. 5000/- as bribe and it was settled for Rs. 3800/- and thereafter he made a complaint against him on 06.01.2007. There are three different stories with respect to the demand made by the appellant in both the two complaints and the deposition of the complainant PW-11. 14. 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 which reads as under:- “7. In so far 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).” 15. 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 ad under:- “10. In order to constitute an offence under Section 7 of the Prevention of Corruption Act, ‘proof of demand’ is a sine quo 9 non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (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 following observation in Mukut Bihari and Anr. 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.” 10 16. 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) of the Prevention of Corruption Act, 1988 which reads as under:- “74. What emerges from the aforesaid discussion is summarised as under: (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. (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. (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. (d) In order to prove the fact in issue, namely, the demand and acceptance of Criminal Appeal No.1669 of 2009 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 Section 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 Section 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 11 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 Criminal Appeal No.1669 of 2009 a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1) (d) and (i) and (ii) of the Act. (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. (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. (g) In so far 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 Criminal Appeal No.1669 of 2009 presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act. (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 (e), above, as the former is a mandatory presumption while the latter is discretionary in nature. In view of the aforesaid discussion and conclusions, we find that there is not 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 Section 7 or 13() (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.” 12 17. PW-1, N. R. Dhruw, is the Patwari who prepared the spot map Ex.P/1. 18. PW-2, Dhaniram Bhagat, is the Senior Constable at the Anti-Corruption Bureau, Raipur. On 11.01.2007, the complainant has made a written complaint which was seen by the panch witnesses, and after hearing the conversation recorded in the micro tape recorder, they verified with the complainant, and then the complainant handed over Rs. 3800/-. He applied the phenolphthalein powder on the said currency notes and kept it in the right pocket of full pant of the complainant and instructed him not to touch the same before handing it over to the appellant. The hand-wash of the other members of the trap party has remained unchanged, whereas his hand-wash was changed into pink colour, which was seized and sealed. He prepared the specimen pouch of phenolphthalein powder. In cross-examination, he admitted that he did not see the complaint of the complainant. The specimen packet of phenolphthalein powder has not been seized from him. He has not heard the conversation of the tape recorder. 19. PW-3, Manoj Kumar Khilari, who is the Deputy Superintendent of Police Anti- Corruption Bureau, Raipur, have stated in his evidence that the Superintendent of Police had instructed him to conduct a trap proceeding. On 11.01.2007, the members of the trap party were gathered in the office of the Anti-Corruption Bureau, Raipur. They were informed about the complaint dated 06.01.2007 made by the complainant Shiv Kumar Dahariya, and also about the conversation recorded on the tape recorder. Thereafter, on 08.01.2007, the complainant had informed that he had recorded the conversation. The complainant was called by the Officers of the Anti- Corruption Bureau on 11.01.2007 at 05:00 a.m., and then he made his second complaint Ex.P/3. The conversation of the tape recorder was heard by the members of the trap party, and after verification of the complaint, they countersigned the same. The unnumbered FIR was registered against the appellant. The transcript of the conversation was prepared, and the cassette 13 was seized. The amount of Rs. 3800/- was handed over by the complainant, and then phenolphthalein powder was applied. The panchnama of serial number of currency notes was prepared, and the complainant was instructed about the transaction. The hands of the members of the trap party were washed, and except for the hand-wash of the constable who applied the phenolphthalein powder on the currency notes, the hand-wash of other persons was not changed. The hand-wash of the constable was seized and sealed. Another micro tape recorder was given to the complainant for recording of the conversation at the time of the transaction. The preliminary panchnama of the entire proceeding was prepared, and then they proceeded towards the office of the appellant. The members of the trap party were standing outside of the office, and the complainant entered into the office room. After sometime, he came out of the office of the appellant and made a gesture about the completion of the transaction, and then the members of the trap party entered into the office of the appellant and caught him. The hand- wash of the complainant and the appellant was changed into pink colour and was separately seized and sealed. On his instance, the tainted currency notes were recovered, which were kept over the paddy bag under a brick. In cross-examination. He admitted that he was not acquainted with the voice of the appellant. He stated that the voice of the appellant is there in the conversation is on the basis of information given by the complainant. The appellant had taken the search of the panch witness Vishwakarma, and he had not taken the search of other members of the trap party. He admitted that except for the complaint Ex.P/3, he has not signed any other document. 20. PW-4, Jogendra Singh Gambhir, is the Station House Officer at the Anti- Corruption Bureau, Raipur. On the basis of Dehati Nalshi he registered the FIR against the appellant which is Ex.P/4. 21. PW-5, Ranu Prasad Gilahare, is the witness of panchnama Ex.P/5 by which a micro tape recorder was given to the complainant. In cross-examination, he 14 stated that the said cassette was not examined before him as to whether it was empty or not. 22. PW-6, S. S. Bhagat, is the inspector of police and a members of the trap party. He stated in his evidence that on the instruction of the Superintendent of Police, he appeared at the Office of the Anti-Corruption Bureau on 11.01.2007 at about 05:00 a.m. They were introduced by the other members of the trap party. The complainant, Shiv Kumar Dahariya, made a written complaint and produced the micro tape recorder. After its verification, the unnumbered FIR was registered, and the complainant gave Rs. 3800/- to Mr. Vishwakarma. After preliminary panchanama, phenopthelene powder was applied on the said currency notes through the constable Dhaniram Bhagat, and it was kept in the right pocket of the full pant of the complainant. The hand-wash of the constable was seized and sealed. The transcript of the conversation was prepared, and the cassettes were seized. They proceeded to the office of the appellant, and they remained outside the office room of the appellant. The complainant entered into his office, and after some time, he came out and made a gesture about the completion of the transaction, and then they entered the office of the appellant and caught him hold. His and the complainant’s hands were washed, and the colour of the solution was turned into pink colour, which was separately seized and sealed. In the instance of the appellant, the tainted currency notes were recovered, which were kept under a brick, and after the due process of the trap and seizure, various panchnamas were prepared, and the appellant was arrested. In cross-examination, he stated that no separate panchnama of the conversation was prepared. The tape recorder was not seized. The voice recorded in the tape recorder is the voice of the appellant, which was informed by the complainant and on that basis, they made the transcription. He himself has not given any search to the appellant even the other members of the trap party have not given any search to the appellant. He 15 has not stated in his police statement about hearing of the conversation. He further admitted that the investigating officer had not taken his signature on any of the papers. 23. PW-7, Pawan Kumar Pathak, is the constable at the Anti-Corruption Bureau has stated in his evidence that on 10.01.2007, he was being instructed to appear in the Office of the Anti-Corruption Bureau on 11.01.2007 at about 05:00 a.m. When he appeared there, he was being introduced by the other members of the trap party, and they verified the complaint made by the complainant. The complainant had handed over Rs. 3800/-to the officers of the Anti-Corruption Bureau in which phenolphthalein powder was applied. The said tainted currency notes were kept in the right pocket of the full pant of the complainant, and convinced him about the transaction. The hands of the members of the trap party were washed, but the colour was not changed. The hand-wash of the constable who applied the phenolphthalein powder on the currency notes was changed into pink colour, and it was seized. The hand-wash of the complainant was changed into pink colour, and it was also seized. After the necessary process of pre-trap proceedings, they proceeded towards the office of the appellant. After the completion of the transaction, the complainant made a gesture, and then the members of the trap party entered the office room of the appellant, and then the trap proceedings were drawn. The hands of the appellant and the complainant were washed, which were turned into pink colour and separately seized and sealed. In cross- examination, he stated that he had only prepared the solution of sodium carbonate; except for this, he had not done anything in the case. He himself has not read the complaint of the complainant. He admitted that the tainted currency notes were seized, which were kept under a brick. 24. PW-8, R. R. Vishwakarma, who is the Assistant Engineer at PHE Department, Raipur, and a member of the trap party, have stated in his evidence that on 10.01.2007, he received an order from the Collector Raipur, 16 to be a member of the trap party. When he contacted the officer at the Anti- Corruption Bureau, he was called on 11.01.2007 at 05:00 a.m. to the Office of the Anti-Corruption Bureau. When he appeared there, he was being introduced by other members of the trap party. After preliminary verification of the complaint, they heard the conversation recorded in the tape recorder and then a transcript Ex.P/7, was prepared in his presence, and the cassette was seized vide seizure memo Ex.P/8. The complainant was being searched by the panch witness. The complainant handed over Rs. 3800/- to the Inspector Mr. Thakur, and phenolphthalein powder was applied in the said currency notes by the constable and kept in the right pocket of full pant of the complainant and instructed him not to touch the said tainted currency notes before handing over to the appellant. The necessary hand-wash was made, and the solutions were seized. Another tape recorder was given to the complainant for recording of conversation between him and the appellant at the time of the alleged transaction. The preliminary trap panchnama Ex.P/11 was prepared, and then they proceeded towards the office of the appellant. The appellant entered into the office of the appellant, and after some time, he came out and made gesture about the completion of the transaction, and then the members of the trap party entered into the office room of the appellant. On his instance, the tainted currency notes were recovered, which were kept in the paddy bags under a brick. The necessary panchnamas were prepared, hands were washed, and seizures were made. The conversation recorded in the tape recorder was again heard, and a transcript Ex.P/14, was prepared. The Rin-Pustika has also been seized vide seizure memo Ex.P/16, and inventory was prepared in his presence, which is Ex.P/17. In cross- examination, he stated that he could not tell as to who prepared the transcript Ex.P/7. On the basis of the voice of the tape recorder, the transcript was prepared. Before the transcript, he had not heard the voice of the appellant. The complainant has informed about the voice of the appellant, he admitted 17 that the tainted currency notes have not been seized from the appellant, but it has been seized from the place informed by him. He further admitted that from the complaint, it appears that it was a case of partition of holding for which an application is to be made before the Tahsildar, and the holding can be partitioned only after an order of the Revenue Officers. 25. PW-9, Naveen Thakur, is the Tahsildar who produced the service record of the appellant, which is Ex.P/19. In cross-examination, he stated that there was no departmental inquiry or any punishment against the appellant. The undisputed mutation can be done by the Patwari, but the disputed mutation can only be done after an order of the Tahsildar. After the year 2006, the right of mutation was given to the Gram Panchayat in an undisputed case. 26. PW-10, Arun Mishra is the Assistant Grade-II posted at Law and Legislative Department, Mantralay, Raipur, who proved the sanction for prosecution, which is Ex.P/20. 27. PW-12, Ram Pravesh Mishra, is the constable posted at the Anti-Corruption Bureau, Raipur, who has taken the seized solution to the FSL, Raipur, for its chemical examination. 28. PW-13, Sahdev Thakur, is the Inspector of Police posted at the Anti- Corruption Bureau, Raipur. He stated in his evidence that on 06.01.2007, the complainant Shiv Kumar Dahariya has made a written complaint Ex.P/21 regarding the demand of bribe of Rs. 3800/- by the appellant. He was instructed by the Superintendent of Police, ACB, Raipur, to take action. He handed over a micro tape-recorder to the complainant for recording of the conversation between him and the appellant, and a panchnama, Ex.P/5, was prepared. On 11.01.2007, the complainant made his second complaint Ex.P/3 to the Superintendent of Police, ACB, Raipur, which was again forwarded to him. On 11.01.2007, the transcript Ex.P/7 was prepared in the presence of the witnesses. The offence was registered, which is Ex.P/24. On 11.01.2007 the complainant was being called to the office of ACB, Raipur 18 and then the other members of the trap party were called all of them were gathered at about 05:00 a.m. on 11.01.2007 and after verification of the complaint of the complainant the preliminary trap proceeding were drawn, necessary panchnamas were prepared, the currency notes were tainted with the phenolphthalein powder which was kept in the right pocket of full pant of the complainant and then they proceeded towards the office of the appellant. After completion of the transaction, the complainant made the gesture and then the trap proceedings were drawn and hands were washed. The tainted currency notes were recovered, which were kept under a brick. The solution of hand-wash of the appellant as well as the complainant was separately seized and sealed, and panchnamas were prepared. The transcript Ex.P/14 was prepared in the presence of the witnesses. The appellant was arrested, an inventory Ex.P/17 was prepared, FIR has been registered against the appellant. The solutions were sent for their chemical examination to FSL, Raipur and obtained the report, which is Ex.P/26. The service record of the appellant was also obtained, which is Ex.P/27. Statements of the witnesses were recorded, and after the completion of the investigation charge sheet was filed against the appellant. In cross-examination, he admitted that the complainant had not given any details as to when and where the appellant demanded the bribe from the complainant. He further admitted that partition, lease or separation of holding can be done after the order of the Tahsildar and the Patwari is the executing agency. There was no search of the appellant. The place from where the tainted currency notes were recovered, the paddy bags were there, and the tainted currency notes were kept over the paddy bags and under a brick. He admitted that he had not heard the conversation between the appellant and the complainant. 29. From the above evidence led by the prosecution, it appears that on 06.01.2007, the complainant made a written complaint Ex.P/21 to the Anti- Corruption Bureau, Raipur, about illegal demand made by the appellant. A 19 micro tape recorder was given to the complainant to get the conversation recorded in it. On 11.01.2007, the complainant produced the said tape- recorder before the ACB and a transcript prepared by the trap party. There is no examination of the voice sample of the complainant and the appellant, as the conversation recorded in the tape recorder is of the voice of the appellant and the complainant, which proves the demand made by him. 30. 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 recognizing his voice. In paragraph 12 of the judgment, it has been held as under; “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.” 31. Admittedly, in the present case, the prosecution has not proved the fact that the voice recorded on the tape recorder was the voice of the appellant. Further from the evidence of the witnesses, it comes that on 08.01.2007, the complainant informed the Officer of ACB regarding the conversation recorded in the tape recorder, but the same was produced on 11.01.2007 before the Officers of the ACB. From 08.01.2007 to 11.01.2007, the said tape-recorder was in possession of the complainant, and the possibility of tampering with the tape-recorder cannot be ruled out. 20 32. In the matter of Sanjaysingh Ramrao Chavan Vs. Dattatray Gulabrao Phalke and Others, 2015(3)SCC123. In paragraph 16 of 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.” 33. 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. The 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.” 34. The defence has examined 4 defence witnesses, but from the cross- examination of all the defence witnesses, their presence at the time of the incident is taken away, and therefore no benefit could be extended to the appellant from the evidence of the defence witnesses. 35. There is no convincing and clinching evidence with respect to demand and acceptance, and the evidence available on record is not of that sterling 21 quality by which the conviction can be held for the alleged offence. From the aforesaid evidence available on record, the whole story of the prosecution, statement of the witnesses, it is quite vivid that there is lack of clinching evidence with respect to the demand and acceptance of tainted currency notes by the appellant, which makes the entire story of the prosecution doubtful. Therefore, in the opinion of this Court, the impugned judgment of conviction and sentence passed against the appellant is not sustainable, and the appellant is entitled to get the benefit of doubt. 36. Consequently, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence passed by the learned trial Court is set aside. The appellant is acquitted of the alleged offences. The appellant is reported to be on bail. His bail bond shall continue for the further period of 06 months as provided under Section 481 of BNSS, 2023. 37. 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: 2025.06.03 11:12:33 +0530