1 2025:CGHC:13747 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 467 of 2017 Sanjay Naampalliwar S/o Shri Anant Rao Nampalliwar Aged About 47 Years Office Of Sub- Registrar, Cooperative Shopping Complex, Vivekanand Nagar, Police Station Civil Lines, Raipur, Chhattisgarh Civil And Revenue District Raipur, Chhattisgarh. , Chhattisgarh ... Appellant versus State Of Chhattisgarh Through The Police Station- Anti Corruption Bureau, Raipur, Chhattisgarh., Chhattisgarh ---- Respondent (Cause title taken from Case Information System) For Appellant : Ms. Priya Mishra, Advocate For Respondent/State : Mr. Jitendra Shrivastava, Govt. Advocate Hon'ble Shri R avindra Kumar Agrawal, Judge Judgement on Board 21/03/2025 1. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘CRPC) has been filed by the appellant against impugned judgement of conviction and sentence dated 10.03.2017, passed by learned Special Judge (Prevention of VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.05.31 11:34:59 +0530 2 Corruption Act) and First Additional Sessions Judge, Raipur, in Special Criminal Case No. 02 of 2010, whereby the appellant has been convicted and sentenced as under:- Conviction Sentence U/s. 7 of the Prevention of Corruption Act, 1988 (in short ‘PC Act’) R.I. for 02 years and fine of Rs. 1,00,000/-, in default of payment of fine additional R.I. for 06 months. U/s. 13(1)(d) read with 13(2) of PC Act. R.I. for 02 years and fine of Rs. 1,00,000/-, in default of payment of fine additional R.I. for 06 months. Both the sentences are directed to be run concurrently 2. The brief facts of the case are that the complainant Shambhu Dayal Bharti/PW-6 has made a written complaint on 05.04.2007 to the Superintendent of Police, Anti-corruption Bureau, Raipur with the allegation that he purchased a residential plot at Choubey Colony, Raipur from Raipur Co-operative Housing Society Maryadit, Choubey Colony, Raipur in the year 1977 for the consideration of Rs. 4000/- and a possession certificate was issued in his favour, but sale-deed could not be registered in his name. However, he is residing there after constructing his house since more than 25 years. On 22.05.2006, the complainant made an application to the society for registration of the plot in his name and paid Rs. 1,50,000/- as registration charges to the society and sale-deed has got registered in his name on 30.03.2007. The copy of sale-deed was not given to him and kept by the authorized officer of the society i.e. the present appellant Sanjay Nampalliwar and in lieu of handing over the original copy of sale-deed, 3 he is demanding Rs. 50,000/- as bribe. For verification of his complaint, a micro cassette and tape recorder was given to the complainant to get the conversation between him and the appellant recorded. On 16.04.2007, he made conversation with the appellant, which was recorded in the said tape recorder and he was called on 17.04.2007, in between 7:00 to 9:00 PM in his office along with the amount of bribe. The complainant informed about the conversation to the officers of ACB, who called him at about 1:00 PM in the office of ACB, where panch witnesses and other members of the trap party were present. The complainant produced the tape recorder having conversation recorded in it and his second complaint, which was also verified by the members of trap party and they have also heard the conversation between the complainant and the appellant and prepared the transcript and after due verification of the complaint, Dehati Nalishi (exhibit P-1) was recorded on 17.04.2007. The complainant produced Rs. 50,000/- cash having 20 currency notes of Rs.1000/- denomination and 60 currency notes of Rs. 500/- denomination. The necessary panchnama of its serial number was prepared. Phenolphthalein powder was applied in the currency notes. Talashi panchnama of the complainant was taken and panchnama was prepared. The tainted currency notes were kept in the pocket of the kurta of the complainant and convinced him, not to touch the currency note before handing it over to the appellant. He also convinced about gesture, which is to be made after completion of transaction. Another micro tape recorder with cassette was given for 4 recording of conversation at the time of handing over the amount. The specimen packets of sodium carbonate powder were also drawn, panchnama was prepared and after necessary procedure of trap party, they proceeded towards the place of incident. When the trap party reached on the place of incident, the complainant had gone to the appellant, and when he was handing over the amount of bribe to the appellant, he asked to give it to the peon Bahra Ram Dhangar and then the complainant had given the amount to the peon and then the appellant gave the original copy of sale-deed to the complainant. A chit of account has also been given to the complainant by the appellant. After completion of transaction, the complainant came out from the office of appellant and made gesture to the trap party about completion of transaction. The trap party entered into the office of the appellant and then trap proceedings were drawn. The handwash of the appellant as well as the complainant were done into pink colour, which was seized. The tainted currency notes of Rs. 50,000/- were also seized and its wash was also done into pink colour. The paper of the almirah, on which the said currency notes were kept were also washed, which also turned into pink colour. In the tape recorder, conversation could not be recorded, because of the reason that by mistake wrong button was pushed. The tainted currency notes, tape recorder, solutions of handwash, the documents from the complainant, etc. were seized and necessary panchnamas were prepared. On the basis of Dehati Nalishi, the FIR (exhibit P-2) was registered against the appellant on 19.04.2007 for the offence under 5 Section 7 of the PC Act. The solutions of handwash were sent to State FSL Raipur for its chemical examination, in which the positive report of presence of sodium carbonate and phenolphthalein were given in FSL report (exhibit P-39). The sanction for prosecution from the concerned department was obtained. Statement of the witnesses under Section 161 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed before the learned trial Court for the offence under Section 7, 13(1)(d) and 13(2) of PC Act and Section 34 of IPC against the appellant and co-accused Bahra Ram Dhangar. 3. The learned trial Court has framed charge against the appellant Sanjay Nampalliwar for the offence under Sections 120-B of IPC and 7/13(1)(d) read with Section 13(2) of PC Act and charge against co- accused Bahra Ram Dhangar has been framed for the offence under Section 120-B of IPC. The accused persons denied the charge and claimed trial. 4. In order to prove the charge against the accused persons, the prosecution has examined as many as 12 witnesses. Statement of the accused persons under Section 313 of the CRPC have also been recorded, in which they denied the circumstances appears against them, plead innocence and have submitted that they been falsely implicated in the case and the appellant Sanjay Nampalliwar has submitted that he was posted as authorized officer in the Cooperative Society since 26.04.2007. The complainant Shambhu Dayal Bharti resident of House No. 24, Choubey Colony, Raipur has made an 6 application on 22.05.2006 for execution of sale-deed of his house, which was allotted to him in the year 1977. He informed him that he is not the competent authority to execute the sale-deed and the same could be executed only after due permission from Deputy Registrar, Cooperative Society. On 28.03.2007, the permission to execute sale- deed was given and on 30.03.2007, the draft of the sale-deed was prepared and since sufficient stamp duty was not available, the sale- deed could have been registered with the available stamp duty. The son of the complainant had given Rs. 82,000/- at that time, which was given to Mr. Pandey, Advocate as the stamp duty. At the time of registration of the deed, he came to know that the value of the land was Rs. 12,87,600/-, in which required stamp duty was Rs. 1,27,150/- and required registration fee was Rs. 10,400/- and including the fee of the advocate and drafting fees, total Rs. 1,50,000/- were spent, which was informed by Mr. Pandey to him and then he asked the son of the complainant to pay the remaining amount. The son of the complainant had given Rs. 18,000/- at that time and assured that the remaining amount of Rs. 50,000/- will be paid to him very soon. He sent the said amount of Rs. 50,000/- through his brother and at that time he was busy in the audit of other cooperative society and thus, he only received Rs. 1,00,000/- through Vinay Bharti as the stamp duty of the sale-deed and Rs. 50,000/- was balanced. The original deed of registration was received by him on 14.04.2007 and he never demanded any excess amount except the actual expenses incurred in the registration of the sale-deed. The complainant was the purchaser 7 of the land and he has to bear the registration expenses and stamp duty. He never called the complainant on 17.04.2007, but the complainant himself came on that day in his office and asked to handover the original sale-deed and then he asked the peon Bahra Ram to take the balance amount of Rs. 50,000/- and handover the original sale-deed to him. Bahra Ram had handed over the slip of account and the original sale-deed to the complainant, thereafter, the trap proceeding was drawn. At the time of trap proceeding, he also stated that it was the amount towards stamp duty. He further stated that prior to 26.04.2005, one Rajkumar Naidu was the authorized officer of the society. He lodged an FIR on 15.09.2005 against him with respect to the embezzlement and misappropriation of fund, for which a criminal case is pending against Rajkumar Naidu. He with the collusion of the son of the present complainant has acted and get the appellant trapped in the offence. There is no complaint against him since 2005. On 30.03.2007, the sale-deed was registered and no work was remaining. Since he has paid the stamp duty, the original copy of sale-deed was received by him from the office of the Registrar. The complainant has not given any excess amount to him except the stamp duty and he has been falsely implicated in the offence. 5. The co-accused Bahra Ram Dhangar has also stated in his 313 CRPC statement that on being asked by the appellant Sanjay Nampalliwar to handover the original copy of sale-deed to the complainant, he before giving it to him had gone to get it photocopied and when he returned, he found that the amount was kept in the table of the appellant, which 8 he asked to keep it in almirah and then he kept it in the almirah and thereafter the trap proceeding was drawn. He is innocent. 6. After appreciation of oral as well as documentary evidence, led by the prosecution, the learned trial Court has acquitted the appellant Sanjay Nampalliwar and co-accused Bahra Ram Dhangar from the offence of Section 120-B of IPC, but has convicted and sentenced the appellant as mentioned in the earlier part of the judgment, hence this appeal. 7. Learned counsel for the appellant would submit that the impugned judgment of conviction and sentence passed against the appellant 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 and recovery of tainted currency notes have also not been made from him. From the alleged conversation, there is no ingredients of any 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 and there are material omissions and contradictions in the evidence of the complainant as well as other witnesses. In absence of any demand or acceptance, the recovery, even if it is made, is not sufficient to hold the appellant guilty for the alleged offence. The sale- deed in favour of the complainant has already been registered on 30.03.2007, therefore, there is no question for demanding bribe from 9 the complainant for registration of the sale-deed. The prosecution has completely failed to prove the charge against the appellant and the appellant is entitled for acquittal. 8. Per contra, learned counsel appearing for the State opposes and has submitted that from the evidence produced by the prosecution, the demand as well as acceptance has duly been proved. There is sufficient evidence on record to prove that the appellant demanded Rs. 50,000/- against handing over the sale-deed to the complainant. The entire amount of stamp duty as well as registration fee was already paid at the time of registration and nothing remains for its payment. Therefore, the submission made by the learned counsel for the appellant is baseless that he asked to pay the remaining amount of stamp duty. He would further submit that but for minor omissions or contradictions, the evidence of prosecution witnesses are fully reliable. The demand, acceptance and recovery have duly been proved by the prosecution by leading cogent and clinching evidence, 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 the learned trial Court is justified and needs no interference. 9. I have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspections. 10. The three ingredients are necessary to prove the offence of illegal gratification i.e. (i) demand, (ii) acceptance and (iii) recovery. 10 11. PW-6, Shambhu Dayal Bharti, the complainant has stated in his evidence that he purchased a piece of land bearing plot No. 25, Shala Marg at Choubey Colony, Raipur having its measurement of 45x71 ft (3200 sqft) from Raipur Cooperative Housing Society Limited, Raipur, which has been purchased in the year 1977 for Rs. 4000/- and constructed a house thereon since then. He made an application for registration of the sale-deed and at that time the present appellant was the authorized officer. He made his application on 22.05.2006 and after various requests, the sale-deed could have been registered on 30.03.2007, but evading to handover the original copy of sale-deed. In lieu of handing over the original copy of sale-deed, he demanded Rs. 80,000/- as bribe amount and after negotiation, the amount of Rs. 50,000/- was settled. Since he was not willing to give the bribe to the appellant, he made a complaint on 05.04.2007 to the Superintendent of Police, ACB, Raipur which is exhibit P-8. After preliminary verification, he was provided a tape recorder and cassette and asked him to get the conversation recorded between him and the appellant. The panchnama (exhibit P-9) was also prepared. He met with the appellant in his office and then he called on 17.04.2007 in his office along with the bribe money in between 7:00 to 9:00 PM. At that time, the co-accused Bahra Ram Dhangar was also there. He orally informed to the officers of ACB that the appellant has called him on 17.04.2007 and then the officers of ACB again asked him to come on 17.04.2007 at about 1:00 PM to the office of ACB. When he went there, he handed over the second complaint (exhibit P-10) and tape 11 recorder and thereafter he was sent to the senior officer. He was also introduced with the panch witnesses and they verified his complaint and after hearing the conversation of the tape recorder, the transcript was prepared, which is exhibit P-11. The cassette of the said tape recorder was seized vide seizure memo (exhibit P-12). He given Rs. 50,000/- cash to the officers of ACB, in which 20 currency notes of Rs. 1000/- denomination and 60 currency notes of Rs. 500/- denomination. The necessary panchnama of its serial number was prepared and phenolphthalein powder was applied. His talashi was also taken and panchnama (exhibit P-13) was prepared. The hands of the persons present there were washed, but it has not been turned into any colour, but the handwash of the persons who applied the phenolphthalein powder on the currency notes were turned into pink colour. The tainted currency notes were kept in right pocket of his kurta and instructed him not to touch before handing over to the appellant. Another tape recorder and cassette were given to him to again recorded the conversation between him and the appellant at the time of transaction of the bribe money. The panchnama of entire proceeding was prepared, which is exhibit P-15. He along with the trap party proceeded to the office of the appellant and the members of the trap party take their position. He entered into the office of the appellant and when given the tainted amount to him, he asked to give it to Bahra Ram Dhangar and then he gave it to Bahra Ram Dhangar, who kept it in the almirah on the instructions of the appellant. He took his original copy of the sale-deed from the appellant. He also asked for account 12 slip as he has already paid Rs. 1,50,000/- at the time of registration of the deed and then the appellant also gave him the account slip. He came out from the office of the appellant and made gesture to the trap party about completion of transaction and then the members of the trap party entered into the office of the appellant and started the trap proceedings. His hands were washed, but the colour of the solution was remain unchanged, however the colour of the handwash of the co-accused Bahra Ram Dhangar was turned into pink colour, which was seized by the officers of the ACB. The tainted currency notes were seized from the almirah and its serial numbers were tallied with the panchnama. The paper of the almirah was also washed and the colour of the solution was also turned into pink colour. Due to mistake, the conversation could not be recorded in the tape recorded at that time. The deed of registry and account slip was seized vide seizure memo (exhibit P-17). The other documents have also been seized and necessary panchnama of the entire trap proceeding was prepared, which is exhibit P-18. In cross-examination, he stated that after purchase of the land in the year 1977, he contacted with the authorities in the year 1977 itself for registration of the land, but it could not be registered as he has not given any bribe to the concerned clerk at that time. He made a complaint to the president of the society in the year 1977 itself with respect to the illegal demand of bribe by the clerk. He has not made any complaint to the ACB office with respect to the demand made by the clerk of the society, but he made a complaint to the behaviour of 13 the clerk to the police station Amanaka as well as president of the society. In the year 1977, he has not made any complaint to the ACB office as he was not thought it fit to make complaint. He admitted that on 22.05.2006, he made an application to the society and at that time, the appellant was incharge of the society. He acquainted with the cooperative inspector Naidu, but he did not know as to whether he was incharge of the society prior to the present appellant or not. He further admitted that he filed a writ petition with respect to the present case through the cooperative inspector Naidu. He and Mr. Naidu both wanted action in the present case. He further admitted that on 30.03.2007, the sale-deed of his land was executed and registered and prior to 30.03.2007, he has not made any complaint to anywhere that due to the bribe amount, the registration of his land would not have been made. He further admitted that prior to 30.03.2007, no one has demanded any bribe amount from him. He also admitted that there was a crowed in the registration office on 30.03.2007 and it will take time to complete the formalities of the sale-deed. He has not made his efforts to get the original sale-deed from the registry office and since the sale-deed was registered through the society, he himself had not gone to the registry office to obtain the original sale-deed. On 05.04.2007, he first time visited to the ACB office. Before going to ACB office, he asked the present appellant for his registration papers and he replied that he will get the registration papers later on because there was a crowed in the registry office. He admitted that when he asked the appellant for the deed, he replied that till date he has not 14 received the deed from the registry office and as soon as he received the same, it will be given to him. He further stated that he has not disclosed in the office of ACB that the registration of the deed has already been done on 30.03.2007. On 05.04.2007, the office of ACB had given him a tape recorder with cassette. After receiving the tape recorder, he had gone to the appellant 2-3 times, but he was not available. He could not remember as to when he met with the appellant. Except the date, when he met with the appellant, the other dates he remembered. On 16.04.2007, he had gone to the ACB office to inform that the appellant has called him on 17.04.2007, but had not taken the tape recorder with him. How many days prior to 16.04.2007, he recorded the conversation, he could not tell. On 16.04.2007, when he visited to ACB office, the date of return of the document was not fixed, therefore, he had not taken the tape recorder with him. He admitted that on 05.04.2007, he was not in knowledge that he has to go on 17.04.2007 for receiving his document back. He admitted that in his complaint dated 05.04.2007 (exhibit P-8), he has written that the appellant has called him on 17.04.2007 in between 7:00 to 9:00 PM in his office along with the bribe money. He further admitted that whenever he had gone to office of the appellant to visit him, he was not available in his office. He further admitted that during his conversation, he asked from the appellant as to whether he is required to pay any amount or not, but what the appellant replied, he could not remember. He further admitted that he has not returned the tape recorder to the ACB office on the same day, when the conversation 15 was recorded. He also has not heard the conversation of the tape recorder. On 17.04.2007, when he had gone to ACB office, he firstly made his complaint (exhibit P-10), and thereafter the conversation of the tape recorder was heard. He further stated that 1-2 days back the officers of the ACB had already heard the conversation of the tape recorder and they kept the same with them. On 17.04.2007, he was not in possession of the said tape recorder and 1-2 days back he had given the said tape recorder and cassette to Mr. Bhagat of ACB office. At that time, the panch witnesses were not present. He could not remember as to whether in the said conversation, a demand of Rs. 50,000/- was there or not. He could not remember the process of transcription of the conversation. He admitted that the transcription was already prepared 1-2 days prior to 17.04.2007, which is exhibit P- 11. He further admitted that the transcription of exhibit P-11 bears with the date of 17.04.2007 and time of 14:45 Hrs. He further admitted that exhibit P-11 is not the same transcription which has been prepared 1-2 days back from 17.04.2007. He further clarifies that both these transcriptions are different. When he requested the appellant to give him the original deed of registry, he was not in knowledge as to whether the deed was received by him or not. He himself had not gone to registry office for the said deed. He shown his ignorance as to what has been recorded in the conversation and what conversation was made between him and the appellant. He further admitted that in the transcription (exhibit P-11) it is not there that the appellant has called him on 17.04.2007 along with the bribe money. 16 He further stated that before the registry of the deed, he sent Rs. 1,50,000/- to the counsel under the instruction of the appellant through his son. The requisite stamp and paper work was completed by the said counsel. Both the complaints (exhibit P-8 and P-10) are almost similar except the micro tape recorder. He further admitted that in his complaint dated 05.04.2007, it has not been mentioned that he has given Rs. 1,50,000/- for registration of the deed, even in the complaint dated 17.04.2007, it is not there. Further, in his statement recorded on 19.04.2007, it is not there that he has given Rs. 50,000/- for registration of the deed. He admitted in his further cross-examination that, his son has given Rs. 1,50,000/- to his counsel and at that time, he was not present. He further admitted in Para 54 of his cross-examination that before registration of the deed, the conversation with respect to the transaction was made with his son and not from him. He further admitted that before registration of the deed, the appellant has not demanded any bribe from him, even after registration of the deed, except the handing over the deed no other conversation was made between them. He has not disclosed anywhere that the demand was made from his son. He further stated that demand made from his son is as good as demand made from him and he believed whatever disclosed by him son. In Para 55 he admitted that he came to know about the transaction from his son. He further admitted that the appellant has not directly demanded Rs. 50,000/- from him. He was not in his personal knowledge about the transaction and he disclosed 17 whatever he came to know from his son. He shown his ignorance that the appellant has lodged an FIR against Mr. Naidu who was earlier posted in the society. 12. From the evidence of the complainant, it is quite vivid that his evidence is shaky on the point as to whether the appellant has demanded the bribe money from him or not. On 05.04.2007, when he made complaint, there was no date and time fixed to handover the original deed and demand made by the appellant, yet the said fact has been averred in the complaint dated 05.04.2007 (exhibit P-8). As per his evidence, the appellant has not demanded any bribe from him directly, but it is made through his son, but the said fact is not come in the written complaint or in other evidence. Further, it is clear from his evidence that when he entered into the office of the appellant and given him the bribe amount, he asked him to give it to Bahra Ram. Had the appellant demanded and accepted the bribe money from the complainant, he would not have involved the co-accused Bahra Ram and would have kept the said amount with him alone. From the handwash solution, it also reflects that the appellant has not received the bribe amount from the complainant as the colour of solution has not been changed. From the evidence of this witness, it is also clear that before the registration of the deed, the appellant had not demanded any bribe from him. Had the appellant been intended to demand bribe, he would have demanded the same prior to registration of the deed, but it is specifically stated by the complainant that prior to registration of the deed, the appellant has not demanded any bribe. 18 Further, when the conversation with respect to demand was recorded, has not been produced in the case. The tape recorder was given to the complainant on 05.04.2007, whereas the same was returned to the office of ACB on 17.04.2007. Where the said tape recorder was kept in between that period has not been proved by the prosecution to prove that the conversation recorded in it is not tempered. 13. In the matter of “Neeraj Dutta v. State (Government of NCT of Delhi)” 2023(4) SCC 731, the Hon'ble Supreme Court has discussed the scope of proof of Sections 7 and 13(1)(d) of PC Act, which reads as under:- “88. What emerges from the aforesaid discussion is summarised 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 19 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. 20 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 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 Section 13(1)(d) and (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 21 presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 88.6(f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7(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 presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act. 22 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.” 14. In the matter of “Mukhtiyar Singh (since deceased) through his Legal Representatives v. State of Punjab” 2017(8) SCC 137, the Hon'ble Supreme Court has held that:- 23 “15. The textual facts in Somabhai Gopalbhai Patel and Mukhtiar Singh and the quality of evidence adduced by the prosecution are clearly e distinguishable and are thus of no avail to the prosecution as would be discernible from the analysis of the materials on record.” 15. In case of “B. Jayaraj v. State of Andhra Pradesh” 2014(13) SCC 55, it has been held by the Hon'ble Supreme Court that, mere recovery of currency notes cannot prove the offence and held that:- “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 Vs. State of A.P. and C.M. Girish Babu Vs. C.B.I.” 16. In another judgment of “V. Sejappa v. State by Police Inspector Lokayukta, Chitradurga” reported in 2016(12) SCC 150, the Hon'ble Supreme Court has held that:- 24 “10. In order to constitute an offence under Section 7 of the Prevention of Corruption Act, ‘proof of demand’ is a sine quo 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.” The same view was reiterated in P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152. 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 25 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 26 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.” 17. Reverting to the facts of the present case, PW-1/K.M. Minj, who is the Inspector of Police had recorded the FIR (exhibit P-2) on the basis of Dehati Nalishi (exhibit P-1) at ACB/EOW. PW-2/Ramnarayan Shriwas is the Patwari, who prepared the spot map (exhibit P-3). PW-3/Arun Kumar Mishra, Assistant Grade-II, posted at Law and Legislative Department, Mantralaya, Raipur has proved the sanction for prosecution (exhibit P-4). PW-4/Someshwar Prasad Tiwari, is the Cooperative Inspector, who proved the service record of the appellant, which are exhibit P-6. PW-5/Natthe Singh is the Head Constable posted at ACB office, Raipur. He stated in his evidence that on 17.04.2007, he was being called by the CSP, ACB office, where he was introduced with the panch witnesses. The complainant gave Rs. 50,000/- and he prepared the preliminary panchnama and gave it to Mr. Sen for applying powder in it and thereafter it was kept in the pocket of kurta of the complainant. He prepared the solution of 27 handwash and thereafter they proceeded to the place of incident and he deposed about the process of trap proceeding in the office of ACB. He being the official witness has stated the procedure drawn during the trap proceeding. He did not know about any complaint by the complainant prior to 17.04.2007. He also did not know about the tape recorder. He has not heard the conversation in the tape recorder and if it is there in his police statement (exhibit D-1), he could not tell the reason. He was standing outside of the office room of the appellant at the time of trap proceeding. The co-accused Dhangar has informed about the tainted currency notes and from the handwash of the appellant, his acceptance has not been proved. He could not remember as to who has prepared the transcript. 18. PW-7, C. Kerketta was the Manager at District Industrial Centre, Raipur and panch witnesses. He stated in his evidence that he was being called in the office of ACB along with N.P. Yadav of his department. When they reached there, they were introduced with the complainant Shambhu Dayal Bharti. He made a complaint (exhibit P- 10) and after its verification, the transcript of the conversation of the tape recorder was prepared which is exhibit P-11 and the seizure memo of cassette is exhibit P-12. The complainant had given Rs. 50,000/- to him. The panchnama of its serial number was prepared and it was tainted with phenolphthalein powder. After the entire proceeding of pre-trial, they proceeded towards the incident. After completion of the transaction, the complainant made gesture and then, they entered into the office of the appellant and trap proceedings were 28 drawn. In cross-examination, he admitted that the complainant has made a complaint that the appellant was demanding Rs. 50,000/- for giving the original deed to him. He has not disclosed that the bribe was demanded from his son. He did not know as to son of the complainant has given any amount to anyone. He also did not know that in the first complaint (exhibit P-8), it is mentioned that the complainant was called on 17.04.2007 between 7:00 to 9:00 PM. He admitted that in the conversation of the tape recorder, the demand of Rs. 50,000/- was not clear and he has not heard about any demand. He further admitted that from the transcript (exhibit P-11), it is not proved that on 5th date, the appellant has demanded money from the complainant. In the transcript (exhibit P-11), there was voice of other persons also, but who is the 3rd person, the complainant did not disclose. He further admitted that on the date of incident, he himself has not seen what transpired inside the office of the appellant. He further admitted that up to the time, when they were in the office of the appellant, he continuously stating that it is the amount of its registration charges. 19. PW-8, Devprakash Verma, is the President of Raipur Cooperative Housing Society. He stated in his evidence that on 23.05.2007, the Anti-corruption Bureau has demanded the service book of Bahra Ram, which he replied through the letter (exhibit P-25 and P-26). The letter of ACB dated 25.08.2007 was also replied on 05.09.2007, which is exhibit P-27 and the relevant documents have been sent to the ACB. With respect to the allotment of the plot to the complainant, the information was also sent to ACB along with the letter (exhibit P-29). In 29 cross-examination, he shown his ignorance as to whether any report was lodged by the appellant against Rajkumar Naidu or any criminal case is pending against him or not. He also did not know as to whether Bahra Ram is the government servant or not. 20. PW-9, Harish Kumar Pandey, is an advocate and junior to Mr. Vyas Dev Bhoi, Advocate. He stated in his evidence that on 30.03.2007, the appellant came to the office of his senior for registration of the sale- deed. On that day, the appellant had given him Rs. 82,000/-, but the total expenditure was come to Rs. 1,27,000/-. Since the appellant was well acquainted with his senior, the balance amount was spent by him under the expectation that it will be recovered later on. On 04.04.2007 or 05.04.2007, the brother of the appellant came to his office, paid the balance amount of Rs. 68,000/- and he prepared the account slip and gave it to him. In the registration of the deed, total Rs. 1,50,000/- was incurred as registration charges. In cross-examination, he stated that the son of the appellant has not given any amount to him. Since it was the time of year closing, therefore there was crowd in the registration office and for that reason the delivery of the original deed would take some time. On 14.04.2007, the deed was given to the appellant, which has been endorsed in their register. 21. PW-10, Sahdev Thakur is the Inspector of Police posted at ACB Raipur. He too has stated in his evidence about the complaint made by the complainant and a trap proceeding. He was also a member of trap party and part of the trap proceeding. In cross-examination, he stated 30 that after about 12 days, when the complainant had taken the tape recorder, the trap proceedings were drawn. During the entire proceeding, it did not come into his knowledge, as to when and where the demand was made by the appellant. He did not come to know on 5th date, that the complainant was called on 17th. In the transcript, there is no mention about the fact that he was called on 17th. He did not know about the expenses incurred in the registration process of the deed. 22. PW-11, S.K. Sen, is another Inspector of Police, posted at ACB, Raipur. He was also a member of trap party and applied phenolphthalein powder on the currency notes. He prepared the handwash solution of the witnesses and panchnamas have also been prepared by him. In cross-examination, he stated that he could not remember as to whether there is any conversation with respect to demand of bribe or not. The complainant has not disclosed that a demand was made from his son. At the time of trap proceeding, the son of the complainant was not there with them. 23. PW-12, Manoj Kumar Bilari, is the Investigating Officer and the member of the trap party. He stated in his evidence that on 05.04.2007, the complainant came to his house and made a written complaint (exhibit P-8) to them. He was being instructed by the Superintendent of Police to proceed with the complaint. After verification of the complaint, a tape recorder was given to him for recording of the conversation, for which the panchnama (exhibit P-9) 31 was prepared. On 16.04.2007, the complainant came to the office of ACB and informed that the conversation was recorded in the tape recorder and the appellant called him on 17.04.2007 in between 7:00 to 9:00 PM, then the complainant was called in the office of ACB at about 1:00 PM on 17.04.2007. Thereafter, the trap party was constituted and after pre-trap proceeding, they proceeded towards the place of incident. He also stated the proceeding drawn before the trap proceeding. When they reached to the office of the appellant, the complainant went inside the office room and they remained outside. After sometime, the complainant came out and made gesture of completion of the transaction and then the complainant informed that other accused has taken the amount of bribe and kept it in the almirah, thereafter, the trap proceeding was drawn and hands of the appellant and co-accused was washed. The tainted currency notes were seized and the entire proceeding of trap were drawn. The appellant and co- accused Bahra Ram were arrested. The documents were seized vide seizure memo (exhibit P-22). The registered sale-deed is exhibit D-2, the account slip is exhibit P-30, the receipt book and ledger of the Raipur Cooperative Housing Society has also been seized, various panchnamas were prepared, the solutions were sent to State FSL Raipur for its chemical examination and obtained the FSL report (exhibit P-39). Statement of the witnesses have been recorded and after obtaining the sanction for prosecution, charge sheet has been filed. In cross-examination, he stated that the appellant was demanding Rs. 80,000/- which was settled for Rs. 50,000/- for 32 registration of the sale-deed. He too has admitted that the complainant has not disclosed that the demand was made from his son and during entire investigation, it has not come into his knowledge that the demand was made by the son of the complainant. The complainant has not disclosed as to what amount he has given to the advocate for registration of the deed. The advocate admitted in his statement that he received the amount from the appellant and his brother in two installments. As per the transcription, the conversation between the appellant and the complainant was made on 13.04.2007. He further admitted that during the transcription, he came to know that the appellant was not in knowledge about whereabouts of the sale-deed at the time of the conversation and the appellant also shown his ignorance about the same. In the transcript (exhibit P-11) it has not been mentioned as to on which date and time the demand was mentioned. He has not asked from the complainant that on 13.04.2007, when the conversation was recorded, why he has not sent it immediately. He further admitted that in the transcript, it has not been mentioned that the appellant has called the complainant on 17.04.2007 between 7:00 to 9:00 PM. He admitted that he has not taken any voice sample of the appellant with respect to the conversation. At the time of trap, the appellant had stated that it was the amount of registration and stamp charges, which has been mentioned in the panchnama of the proceeding. He further admitted that advocate Mr. Pandey has not stated in his statement that the complainant or any of his family members had paid the registration 33 charges. Before proceeding for trap, one Natthe Singh was the shadow witness who was accompanied the complainant, but he asked him to remain outside of the office room. The conversation at the time of transaction of the bribe money could not be recorded due to pressing wrong button of the tape recorder. 24. From all these evidences, it has further come on record that the voice sample of the complainant as well as the appellant was not taken for verification of the conversation between them. As per the evidence of PW-12, the conversation was recorded on 13.04.2007, whereas the tape recorder was handed over to the office of ACB on 17.04.2007. The said tape recorder was kept by the complainant from 05.04.2007 to 17.04.2007 and there is no evidence that the said tape recorder was kept in safe custody or there was no possibility of any tempering in the voice. There is no voice sample of the appellant to connect him with the said conversation. 25. In the matter of “Rajesh Gupta v. State, through the 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 Para 12 the Hon'ble Supreme Court has held that:- “12. On the issue of evidentiary value and credibility of the recording in the cases of trap, the law is well- 34 settled 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 tape-recorded statement must be proved by the maker of the record by satisfactory evidence, direct or circumstantial. The possibility of tampering with, or erasure of any part of the tape-recorded statement must be totally excluded. The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances, otherwise, the transcript as prepared, is inadmissible in evidence.” 26. 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 Sanjay Nampalliwar, 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 in the case of “Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others” 2015(3) SCC 123, in Para 16 of its judgment the Hon'ble Supreme Court has held that:- 35 “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.” 27. The other requirement to prove the requirement 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 the Hon'ble 36 Supreme Court in “Kishan Chander v. State of Delhi”, 2016(3) SCC 108, wherein it has been held that:- “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 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 38 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 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)” 39 28. On minute examination of the evidence led by the prosecution, it is quite clear that with respect to the demand, there are material contradictions in the statement of the complainant/PW-6 Shambhu Dayal Bharti and other witnesses. The complainant/PW-6 has stated in his evidence that the demand was made from his son and not from him and he stated about the demand as per the information given by his son. Surprisingly, the son of the complainant has not been examined in the case, who is the most important witness with respect to the demand and payment of the charges towards the registration fee and stamp duty. Even the complainant has not supported the entire complaint and deposed a different story with respect to the demand made by the appellant for which he made a complaint on 05.04.2007. There are various components which are missing 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. Further, the alleged amount has not been seized from the appellant, but it has been seized from the co- accused Bahra Ram Dhangar and the colour of handwash of the appellant was remain unchanged, which further proves that he has not touched the amount, whereas the colour of handwash of the co- accused Bahra Ram was turned into pink colour, which proves that the alleged tainted amount was recovered from him, but he has been acquitted by the learned trial Court. Therefore, in the considered opinion of this Court, the prosecution has not been able to prove its 40 case beyond reasonable doubt against the appellant and he is entitled for benefit of doubt. 29. 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. 30. 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 Bharatiya Nagarik Suraksha Sanhita, 2023. 31. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved