Jitendra Nath Mukherjee Babu (Died) … vs Union Of India on 18 March, 2026

    0
    35
    ADVERTISEMENT

    Chattisgarh High Court

    Jitendra Nath Mukherjee Babu (Died) … vs Union Of India on 18 March, 2026

                                     1
    
    
    
    
                                                        2026:CGHC:12943
    
    
    
    
         The date when The date when       The date when the
        the judgment is the judgment is judgment is uploaded on
           reserved       pronounced          the website
                                           Operative          Full
          10.02.2026       18.03.2026          --           18.03.2026
    
    
    
                                                                     AFR
    
    
             HIGH COURT OF CHHATTISGARH, BILASPUR
    
                           CRA No. 860 of 2006
    
    1 - Jitendra Nath Mukherjee Babu (Died) Through LRs. (As Per
    Honble Court Order Dated- 22-09-2011 and 23-07-2025)
    
    1.1 - Chandna Mukharjee, W/o Jitendra Nath Mukherjee, aged
    about 55 Years, R/o Dumurkunda, P.S. - Chirkunda, District-
    Dhanbad, Jharkhand.
                                                  ... Appellant
    
                                  versus
    
          Union of India Through CBI Jabalpur (M.P.)
                                                         ... Respondent

    For Appellant. – Mr. Leekesh Kumar and Mr. Manish Kumar
    Chandra, on behalf of Ms. Renu Kochar,
    Advocate.

    For Respondent – Mr. Vaibhav Goverdhan, Advocate.

    SPONSORED

    Hon’ble Smt. Justice Rajani Dubey
    2

    (C.A.V. Judgment)

    1. This appeal arises out of the judgment of conviction and

    order of sentence dated 21.11.2006 passed by the Special

    Judge (C.B.I.), Raipur (C.G.) in Special Criminal Case

    No.54/2004 convicting and sentencing the

    accused/appellant as under :-

               CONVICTION                        SENTENCE
         Section    7   of    the R.I. for one year and fine of
    

    Prevention of Corruption Rs.5000/-, in default of payment
    Act. of fine amount, additional R.I.
    for 04 months.

    Section 13(2) r/w 13 (1)(D) R.I. for 01 year with fine of
    of the Prevention of Rs.5000/-, in default of payment
    Corruption Act. of fine amount, additional R.I.
    for 04 months.

    All the sentenced were
    directed to run concurrently.

    2. During the pendency of the appeal, the original appellant

    expired and his wife, being his legal representative, was

    permitted to continue the present appeal.

    3. The prosecution story, in brief, is that complainant, Michael

    Masih, was posted as Electrical Fitter Grade-IV at Korea

    Colliery under S.E.C.L., Chirimiri Area. He had submitted an

    application seeking withdrawal of an advance amount of Rs.

    2,50,000/- from his Provident Fund account. At the relevant

    time, accused, J. N. Mukherjee (since deceased), was
    3

    posted as Personal Manager at West Chirimiri Colliery. The

    application of the complainant for sanction of provident fund

    advance was required to be processed and approved

    through the office of the accused. It was alleged that the

    accused demanded illegal gratification of Rs. 5,000/- from

    the complainant for facilitating and approving the said

    advance application. Being aggrieved by the demand of

    bribe, the complainant approached the Central Bureau of

    Investigation (CBI) and lodged a complaint. Upon receipt of

    the complaint, the CBI organized a trap proceeding to

    apprehend the accused while accepting the bribe amount.

    On 27.02.2004, at the residential premises of the accused,

    being Quarter No. 2 situated at Korea Colliery, the accused

    allegedly demanded and accepted the bribe amount of Rs.

    5,000/- from complainant, Michael Masih, in the presence of

    an independent witness, S.S. Kashyap. Immediately

    thereafter, the CBI trap team apprehended the accused red-

    handed and recovered the bribe amount from his

    possession. It was further alleged that in order to screen

    himself from legal punishment, the accused caused

    disappearance of the original provident fund advance

    application submitted by the complainant.

    4. After completion of usual investigation, the CBI obtained
    4

    prior sanction for prosecuting the accused from the

    competent authority, namely the Chairman of Coal India

    Limited, being the disciplinary authority of the accused, and

    thereafter filed a charge-sheet before this Special Court for

    offences punishable under Sections 7 and Section 13(2)

    read with Section 13(1)(d) of the Prevention of Corruption

    Act, 1988, (for short ‘the PC Act‘) and Section 201 of the

    Indian Penal Code. The learned Trial Court framed charges

    against the accused/appellant under Sections 7 and 13 (1)

    (d) read with section 13 (2) of the P.C. Act., to which he

    abjured his guilt and pleaded for trial.

    5. So as to hold the accused/appellant guilty, the prosecution

    examined as many as 10 witnesses. Statement of the

    accused/appellant was also recorded under Section 313 of

    Cr.P.C. in which he denied the incriminating circumstances

    appearing against him in the prosecution case, pleaded

    innocence and false implication. No witness was examined

    by the accused/appellant in his defence.

    6. The trial Court after hearing counsel for the respective

    parties and considering the material available on record has

    convicted and sentenced the accused/appellant as

    mentioned in para-1 of this judgment. Hence, this appeal.

    7. Learned counsel for the appellant submits that the
    5

    prosecution has utterly failed to prove the essential

    ingredients of the alleged offences beyond reasonable

    doubt. It is contended that the foundational facts necessary

    to sustain conviction under Section 7 and Section 13(2) read

    with Section 13(1)(d) of the P.C. Act have not been

    established by cogent and reliable evidence. It is further

    submitted that the prosecution has not been able to

    substantiate the alleged demand of Rs. 5,000/- by way of

    illegal gratification by the appellant from the complainant.

    Demand of bribe being sine qua non for conviction under

    the aforesaid provisions, its non-proof is fatal to the case of

    the prosecution. Learned counsel also contends that the

    prosecution has failed to properly obtain and prove the valid

    sanction for prosecution of the appellant as required under

    law, thereby vitiating the entire trial. It is further argued that

    the learned Trial Court erred in holding that the alleged

    currency notes amounting to Rs. 5,000/- were seized from

    the exclusive possession and with the conscious knowledge

    of the appellant. In this regard, attention was invited to

    paragraphs 22, 23 and 24 of the deposition of PW-5 Michael

    Masih and paragraphs 19 to 22 of the deposition of PW-10

    B. Panir Selbum, which, according to the appellant, create

    serious doubt about such alleged recovery. It is submitted
    6

    that the learned Trial Court failed to appreciate the evidence

    on record in its proper perspective.

    8. It is also contended that the prosecution has withheld

    material witnesses, namely Arvind Kumar and S.D.

    Devasthale, whose non-examination has caused serious

    prejudice to the defence. Learned counsel further submits

    that there are material contradictions and omissions in the

    statements of prosecution witnesses, particularly PW-5

    Michael Masih (complainant), PW-4 Upendra Narayan

    Singh, PW-7 Ramshanker Tiwari, PW-8 K.C. Sahu, PW-3

    Ashok Sahu and PW-10 B. Panir Selbum. In view of such

    inconsistencies, no implicit reliance could have been placed

    upon their testimonies. It is further argued that the statement

    of PW-5, the complainant, has not been corroborated by

    independent and reliable evidence on material particulars. In

    absence of such corroboration, the conviction recorded by

    the learned Trial Court is wholly illegal and unsustainable in

    law. Learned counsel also submits that there was no prior

    action such as seizure, panchanama, or any official

    proceeding initiated by the appellant against the

    complainant so as to create any circumstance for coercion

    or compulsion for demand of bribe. It is further contended

    that no independent witness has been examined by the
    7

    prosecution to prove the actual delivery of the alleged bribe

    amount of Rs. 5,000/-. The solitary testimony of PW-5

    Michael Masih is insufficient to establish payment beyond

    reasonable doubt. The appellant’s case, as argued, is that

    on 27.02.2004 the complainant was eager to get his work

    done and himself offered the money, which was refused by

    the appellant. However, the learned Trial Court has

    erroneously disbelieved this defence and held otherwise.

    9. It is further submitted that the alleged phenolphthalein test

    has not been duly proved in accordance with law. The pink-

    coloured solution was neither marked nor exhibited as a

    material article before the Court. The primary evidence,

    namely the sealed bottle containing the solution, was not

    proved and produced with proper seal and signature, and no

    explanation has been offered for such non-production.

    Hence, the alleged chemical test remains unproved.

    Learned counsel argues that neither the demand nor the

    payment of bribe has been proved beyond reasonable

    doubt. In such circumstances, the presumption under

    Section 4(1) of the P.C. Act cannot be invoked against the

    appellant. It is further submitted that mere recovery of

    certain currency notes from the premises of the appellant,

    without proof of voluntary acceptance pursuant to demand,
    8

    is insufficient to raise any statutory presumption. In this

    context, reliance is placed upon the judgments of the

    Hon’ble Apex Court in Sita Ram v. State of Rajasthan

    reported in AIR 1975 SC 1432, Suraj Mal v. State (Delhi

    Administration) reported in AIR 1979 SC 1498, Banshi Lal

    Yadav v. State of Bihar reported in AIR 1981 SC 1235

    (1981) 3 SCC 69, P. Somaraju Vs. State of Andhra

    Pradesh reported in 2025 LiveLaw (SC) 1040 and this

    Court judgment dated 19.08.2025 passed in CRA

    No.294/2009 and other connected appeal [Umesh Kumar

    Yadav Vs. Union of India (Neutral Citation No.

    2025:CGHC:41830)], wherein it has been held that mere

    recovery of money separated from proof of demand and

    voluntary acceptance is not sufficient to sustain conviction,

    and that before raising statutory presumption, the

    prosecution must first prove that the accused accepted

    gratification for himself. It is lastly contended that the

    learned Trial Court erred in shifting the burden upon the

    appellant to disprove the demand of illegal gratification,

    whereas in law the initial burden squarely lies upon the

    prosecution to establish demand and acceptance by reliable

    and independent evidence. These facts cannot be said to

    have been proved merely on the basis of circumstantial
    9

    evidence and the uncorroborated testimony of the

    complainant. Thus, the impugned judgment of conviction

    and order of sentence is liable to be set aside.

    10. On the other hand, learned counsel appearing for the

    respondent/C.B.I. submits that the judgment of conviction

    passed by the learned Special Judge is well-reasoned, legal

    and based upon proper appreciation of oral and

    documentary evidence available on record. It is contended

    that the prosecution has successfully established all the

    essential ingredients of the offences punishable under

    Section 7 and Section 13(2) read with Section 13(1)(d) of

    the P.C. Act beyond reasonable doubt. It is submitted that

    the demand of illegal gratification of Rs. 5,000/- by the

    appellant has been clearly and consistently proved through

    the testimony of the complainant (PW-5), which inspires

    confidence and remains unshaken on material particulars.

    The evidence of the complainant is duly corroborated by the

    independent witness present at the time of trap proceedings

    as well as by the members of the trap team. Learned

    counsel further submits that the acceptance of the bribe

    amount by the appellant stands conclusively established.

    The appellant was apprehended red-handed immediately

    after accepting the tainted currency notes. The recovery of
    10

    the said amount from his possession has been proved by

    cogent evidence. The phenolphthalein test conducted during

    the trap proceedings yielded positive results, thereby

    scientifically corroborating the prosecution case regarding

    handling of the tainted currency notes by the appellant. It is

    contended that minor discrepancies or omissions in the

    testimonies of prosecution witnesses are natural and do not

    affect the substratum of the prosecution case. The learned

    Trial Court has rightly appreciated the evidence in its proper

    perspective and has recorded findings after careful scrutiny

    of the entire material on record. Learned counsel further

    submits that once demand and acceptance of illegal

    gratification have been proved, the statutory presumption

    under Section 20 of the P.C. Act squarely applies. The

    appellant has failed to rebut the said presumption by leading

    any reliable defence evidence or by eliciting material

    contradictions in cross-examination sufficient to probabilise

    his defence. It is argued that the defence plea that the

    complainant voluntarily offered money which was refused by

    the appellant is an afterthought and is not supported by any

    credible evidence. The learned Trial Court has rightly

    disbelieved such defence, as the circumstances of the trap

    and the recovery of tainted currency notes clearly negate
    11

    the said contention. It is submitted that the findings recorded

    by the learned Trial Court are based on evidence and do not

    suffer from perversity or misappreciation warranting

    interference in appeal. Thus, the appeal being devoid of

    merit deserves is liable to be dismissed.

    11. I have heard learned counsel for the parties and perused

    the material available on record.

    12. It is clear from the record of the learned trial Court that the

    learned trial Court framed charges against the

    accused/appellant under Sections 7 and 13 (1) (d) read with

    section 13 (2) of the P.C. Act. & after appreciation of oral

    and documentary evidence, the learned trial Court convicted

    the accused/appellant accordingly.

    13. Complainant Michael Masih (PW-5) has stated that on

    19.01.2004, he had submitted an application (Ex.P-8) for

    CPF loan along with the requisite documents in the office of

    the Superintendent, Koriya Colliery. After submitting the loan

    application, he approached the accused/appellant to

    ascertain the status of his application. However, the

    accused allegedly demanded Rs. 5,000/- and stated that no

    action would be taken on the application unless the amount

    was paid. Thereafter, the witness informed the accused that

    he would return once he had arranged the money.
    12

    14. He has further stated that on a subsequent occasion, he

    went to meet the accused, but the accused was not present

    in the office. Later, he met the accused near the Central

    Bank, where this witness informed the accused that he had

    arranged the money and asked where he should meet him.

    The accused then asked whether he had seen his house.

    Thereafter, the witness went to the house of the accused.

    Prior to this, the witness had already contacted the CBI. The

    CBI officials came to his house, where he narrated the

    entire incident and conversation regarding demand of bribe.

    He has further stated that on 27.02.2004, he submitted a

    written complaint (Ex.P-1) to the CBI stating that the

    accused had demanded Rs. 5,000/- for processing his CPF

    loan application and that he was unwilling to pay the bribe.

    15. He also stated that he handed over a copy of his loan

    application (Ex.P-8) to Inspector Devsthale of the CBI,

    which was seized vide seizure memo (Ex.P-6). Thereafter,

    the CBI officials demonstrated the trap procedure and

    prepared the pre-trap memorandum (Ex.P-2) at his house.

    The witness further stated that he, along with the CBI

    personnel, proceeded on foot towards the house of the

    accused. He and one Kashyap went to the accused’s

    house, knocked the door, and the accused came out. The
    13

    accused asked whether he had brought the money, to which

    the witness replied in the affirmative. Upon handing over the

    amount to the accused, Kashyap gave a pre-arranged

    signal to the CBI team. After that, the CBI trap party

    immediately entered the house and apprehended the

    accused red-handed.

    16. He further stated that Inspector Devsthale caught hold of the

    left hand of the accused, disclosed his identity as a CBI

    Inspector, and informed the accused that he had been

    caught while accepting a bribe. The accused, however,

    stated that he had not taken any bribe from the complainant

    and claimed that the money was repayment of a loan given

    to the complainant.

    17. In paragraph 16 of his cross-examination, the witness stated

    that on 19.01.2004, he had submitted his CPF loan

    application to clerk Upendra Kumar in the receipt and

    dispatch section, and an acknowledgment was given on

    another copy bearing seal and signature. He further stated

    that although the application was submitted on 19.01.2004,

    the acknowledgment was issued on 20.01.2004, and he did

    not submit the application on 20.01.2004.

    18. He has also stated that on 22.01.2004, he visited the office

    to inquire about the status of his loan application, where
    14

    Rama Shankar informed him that the application had been

    forwarded to the Personnel Department.

    19. In paragraph 17, the witness stated that upon being

    informed by clerk Rama Shankar about certain errors in the

    Patwari documents, he approached the Patwari on the

    same day, got the errors corrected, and resubmitted the

    documents in the office on the very same day. He further

    stated that before approaching the Patwari, he had met the

    accused and informed him about the errors, upon which the

    accused instructed him to get the documents corrected from

    the Patwari and also asked him to arrange Rs. 5,000/-. In

    paragraph 18, the witness admitted that he did not lodge

    any complaint with any higher authority regarding the

    alleged demand of bribe on 22.01.2004.

    20. In paragraph 19, the witness admitted that he had informed

    Satpujan Mishra, President, who had accompanied him to

    meet the accused. However, he denied the suggestion that

    he, along with Satpujan Mishra, had conspired to falsely

    implicate the accused in the bribery case.

    21. Upendra Narayan Singh (PW-4) is the Senior Clerk posted

    in Koriya Colliery at Receipt and Dispatch Section. He has

    stated that entry in register (Article ‘F’) at Sl. No.1665 was

    made by him on 20.01.2004, according to which, an
    15

    application of complainant Michael Masih of CPF loan was

    received. He has also stated that after receiving the said

    application, he immediately entered the said application in

    the dak-book and sent it to Shri Sahu, Manager. He has also

    stated that he does not know where is the original copy of

    application whose entry was made in the Article-F. He has

    also stated that the photocopy (Ex.P-8) is the copy of

    original application which was submitted by complainant

    Michael Masih (PW-5). This witness, in para 6 of his cross-

    examination, has admitted that there is no entry for

    19.01.2004 in the register (Article -‘F’), whereas the date

    was written. He has denied this suggestion that he made

    entry at Sl.No.1666 for 20.01.2004 leaving 4 lines empty

    after writing 19.01.2004.

    22. Ramashankar Tiwari (PW-7) is the Senior Clerk who at the

    relevant time was posted in S.E.C.L. Chirmiri. He has stated

    that he look after the work of provident fund and its loan

    regarding work of the employees. This witness in para 2 of

    his examination-in-chief has explained the mode and

    manner in which applications of employees for CPF loan are

    being processes and disposed of. He has stated that on

    20.01.2004, complainant Michael Masih (PW-5) had

    submitted an application (Ex.P-8) for CPF loan of
    16

    Rs.2,50,000/-. He has also stated that in the first week of

    February, 2004, the complainant had come to him and

    inquired about status of his application, on which, he told

    him that his application has not come yet. Thereafter, the

    complainant went to Personal Officer (accused) and came

    back to him and showing enclosed documents with

    application asked him whether the enclosed documents are

    correct or not. This witness in para 6 has stated that old

    application of complainant had not come to him, therefore,

    he did not take any action thereon. In para 8, this witness

    has admitted that he did not receive any application of

    complainant on 19.01.2004, however, he only showed

    documents to him. He has also admitted that no application

    of complainant dated 20.01.2004 was received by him

    through Superintendent Khan. He has also admitted that if

    any loan application is received by the Personal Officer, it is

    not sent to the Area Manager for approval until the

    accompanying documents are rectified.

    23. S.S. Kashyap (PW-1) is the Assistant Administrative Officer

    who at the relevant time was posted in Life Insurance

    Corporation, Chirmiri. He has admitted his signature on

    complaint (Ex.P-1) of Michael Masih, preliminary proceeding

    (Ex.P-2), memorandum of entire proceeding in the house of
    17

    accused (Ex.P-3), spot map (Ex.P-4) and arrest memo of

    accused (Ex.P-5). This witness has stated that he went to

    the house of accused with complainant Michael Masih and

    accused had asked about him then complainant Michael

    Masih introduced him as his relative. This witness has

    denied this suggestion that complainant forcibly gave money

    to the accused.

    24. Sanjay Dongaonkar (PW-6) is another witness of trap party.

    He has stated that he had gone to the house of accused

    with complainant Michael Masih (PW-5) and S.S. Kashyap

    (PW-1) as witness. Complainant Michael Masih gave money

    to accused in his house and thereafter gestured us then he

    along with CBI team entered the house of accused and

    seized money from the accused.

    25. K.C. Sahu (PW-8) who at the relevant time was posted as

    Superintendent Mines/Manager at Koriya Colliery has stated

    that he used to endorse all application forms for PF advance

    received through the receipt and dispatch section by writing

    note in english, ‘Forwarded to the Personnel Manager for

    necessary action,’ and then affixing his signature. At this

    stage, when the witness was shown loan application (Ex. P-

    8) and questioned, he stated as follows:

    ‘;g fdlh vkosnu dh QksVks dkih gS] ftlds Åij nkfgus
    18

    dksus ij esjs dk;kZy; ds vkod tkod ‘kk[kk dh lhy rFkk
    fjlhIV uacj vkfn vafdr gSA ;g vkosnu i= dHkh esjs le{k
    j[kk x;k Fkk ;k ugha ;g eS ugh crk ldrkA ;fn esjs lkeus
    ;g vkosnu i= izLrqr gksrk] rks eS bl ij vius gkFk ls
    ilZuy eSustj dks ekdZ djus dk ys[k fy[krkA bl vkosnu
    i= esa dgh Hkh esjs gkFk dk dksbZ ys[k ugh gS] blfy, eS ;g
    dg ldrk gwa fd ;g vkosnu esjs le{k dHkh dksbZ fopkj gsrq
    ugha vk;k FkkA ‘

    26. H.L. Soni (PW-9) is the witness who at the relevant time

    was posted as Mines Superintendent/Manager in Koriya

    Colliery. He has stated that CBI Officer had summoned him

    with documents relating to loan application of complainant

    Michael Masih (PW-5). Thereafter, he along with K.C. Sahu

    and concerned dealing clerk had gone to CBI Office with

    documents. He has also stated that the CBI Officials had

    seized concerned documents under Ex.P-9 and obtained his

    signature thereon. He has also stated that he attested the

    complainant’s certified copy of the application which the

    complainant submitted to the office on 02.03.2004. He has

    also stated that the complainant’s previous application was

    not available at the office. The dealing clerk took photocopy

    of this application and photographs of other documents with

    him. The CBI Officer asked him to attest and sign the said

    photocopies. So, he signed them immediately, writing

    ‘attested’ on 33 documents. His signature is on all the

    seized documents.

    19

    27. P. Panir Selvam (PW-10) is the Inspector (C.B.I.). He has

    stated I n his examination-in-chief the mode and manner in

    which the preliminary proceeding and trap proceeding was

    conducted. In para 6 of his cross-examination, this witness

    has admitted that he did not note on Ex.P-1 that when and

    on what date this complaint was given to me. He has

    admitted that on Ex.P-1, the two witnesses S.S. Kashyap

    and Sanjay Dodgaonkar did not note that they had

    confirmed the complaint with the complainant.

    28. Close scrutiny of the evidence of prosecution witnesses as

    discussed above makes it clear that in the entire case there

    is no concrete proof of demand of bribe amount by the

    accused. The trap witnesses have only deposed about the

    recovery of bribe amount. Notably, according to the

    complainant (PW-5), he had filed CPF loan application,

    which forms the very basis of the alleged demand, but it is

    surprising to note that original CPF loan application has not

    been produced and only a photocopy (Ex.P-8) has been

    brought on record, without proper foundational proof of its

    submission or movement through official channels.

    29. The defence of accused is that the complainant (PW-5) and

    Union Leader have falsely implicated him in a false case.

    The accused, in his 313 Cr.P.C. statement has answered to
    20

    Q. No.120 has as under :-

    ‘कोलि;kरी के कु छ नेता-नुमा कर्मचारी मुझसे चिढ़ते थे एवं
    नाराज़ रहते थे। माइकल मसीह भी उन्हीं के ikVhZ का था।
    वह मुझसे अपने एक झूठे आवेदन पत्र के आधार पर yksu
    dh स्वीकृ त करवाना चाहता था जिसे मैंने badkj कर दिया
    था। वह मेरे पास इसके बाद आवेदन पत्र लेकर dHkh नहीं
    आया Fkk] और न ही मुझे कोई yksu आवेदन पत्र दिया Fkk।
    लोन आवेदन पत्र प्रक्रिया के अनुसार मेरे पास आते हैं।
    घटना दिनांक को मैं मध्यावकाश के कारण अपने घर में आराम
    कर रहा था। उसी समय किसी ने दरवाज़ा खटखटाया, जिस पर
    मैंने कहा कि दरवाज़ा खुला है तब दरवाज़ा खोलकर दो आदमी
    आए थे तब तक मैं पलंग से उठकर खड़ा हो गया था। मैंने देखा
    कि माइकल मसीह अपनी पैंट की जेब में हाथ डालकर नोट की
    एक गड्डी निकाला और मेरी ओर बढ़ाया और बोला कि मेरा काम
    कर दो। तब मैंने उसके हाथ में रखे नोटों समेत उसके हाथ को
    उसकी ओर झटका, जिसके कारण नोट का बंडल माइकल के
    हाथ से नीचे फर्श पर गिर गया। तब मैंने माइकल मसीह को डांटा
    कि यह क्या कर रहे हो, मैंने तुमसे रुपये कभी नहीं मांगे, तुम मुझे
    जबरदस्ती क्यों नोट दे रहे हो। इतने में चार-पांच लोग और कमरे
    में आ गए और मुझे डांटने लगे कि मैंने रुपये लिए हैं, जिस पर
    मैंने कहा कि मैंने रुपये नहीं लिए हैं, माइकल मुझे जबरदस्ती
    रुपया दे रहा था, जिसको मैंने हाथ से झटका तो रुपया फर्श पर
    गिर गया। इस पर एक व्यक्ति ने अपने आप को सीबीआई का
    इंस्पेक्टर बताते हुए लिखापढ़ी करना चालू कर दिया और मेरे
    हाथों को जबरन धुलवाया तथा 2 ढाई ?kaVs बाद मुझे कु छ
    कागजों पर दस्तखत करने को बोला। तब मैंने इन कागजों को
    पढ़ना चाहा, तब उन्होंने पढ़ने से मना कर दिया एवं के वल
    21

    दस्तखत करवा लिया। मैंने माइकल से रिश्वत नहीं मांगी थी और
    न ही मैंने कोई रिश्वत ली थी। माइकल ने मुझे अपना आवेदन
    नहीं दिया था। इस कारण मेरे द्वारा उसके दिए गए किसी आवेदन
    पत्र को नष्ट करने का कोई सवाल ही नहीं था। मैंने माइकल
    मसीह के किसी आवेदन पत्र को नष्ट नहीं किया था।

    30. From the aforesaid answer to Question No.120, it is

    apparent that the accused has categorically denied having

    received any CPF loan application from the complainant and

    has further asserted that no demand or acceptance of bribe

    was ever made by him, instead that the complainant

    attempted to thrust money upon him. This defence version

    finds substantial corroboration from the evidence of

    prosecution witnesses Upendra Narayan Singh (PW-4),

    Ramashankar Tiwari (PW-7) and K.C. Sahu (PW-8), who

    have explained the prescribed procedure for processing

    loan applications and have not confirmed that any such

    application of the complainant was ever placed before the

    accused. In particular, PW-8 has stated that the noting

    ordinarily made by him on CPF loan application is absent on

    Ex.P-8, which also raised suspicion that any such

    application was filed. Furthermore, the original loan

    application itself has not been produced by the prosecution

    and only a photocopy (Ex.P-8) has been filed by the

    prosecution, thereby gives further support to the defence
    22

    plea and creating a serious doubt regarding the very

    existence and movement of the alleged application.

    31. The Hon’ble Apex Court in P. Somaraju (supra) has held in

    para 20 and 21 as under :-

    “20. In the present case, too, the sole basis of
    the prosecution to prove demand and
    acceptance is the narration of the complainant, a
    close scrutiny of which reveals serious infirmities.
    At the outset, the complainant has no proof other
    than his own oral statement that he visited the
    appellant on 25.09.1997, wherein the appellant
    allegedly made his first demand for a bribe. His
    nephew also admits he does not know when the
    complainant first informed him that the appellant
    had demanded a bribe. Moreover, as the Trial
    Court has already noted:

    (a) There is a material discrepancy as to when
    the complaint was written, as the complainant
    claims it was drafted on the morning of
    25.09.1997. Yet, the alleged demand is said to
    have occurred in the evening of that very day.

    The High Court has dismissed this inconsistency
    as “innocuous” by reasoning that it may be
    attributed to the lapse of five years between
    incident and deposition;

    (b) The complainant itself refers to “Rama
    Raju” rather than the appellant, a mistake not
    corrected at the pre-trap stage on 26.09.1997.
    On this point, the High Court has said:

    23

    “14) … Criminal law does not attach importance
    on names of the accused, but gives importance
    to identity of the accused. One person may be
    called with many names, but all those names
    refer to one and the same person and not
    different persons. It cannot be a circumstance
    either to disbelieve the prosecution case or to
    discredit P.W.-1’s evidence.”

    21. Needless to say, the above observations
    are not tenable in law. Moreover, what we find
    particularly troubling is the complainant’s conduct
    in directing Rajender, the mediator and
    accompanying independent witness, to remain
    outside the appellant’s office during the crucial
    half-hour in which the alleged demand and
    acceptance occurred. This was contrary to the
    explicit instructions of the DSP. Rajender could
    consequently make no positive statement on
    whether the appellant demanded or accepted
    any bribe, and this gap is candidly admitted by
    the prosecution itself.”

    32. This High Court in the matter of Umesh Kumar (supra)

    held in para 16 to 22 as under :-

    “16. S.I. Hussain (P.W.-9) stated that the bribe
    notes were recovered from the junk room.

    In his cross-examination, he admitted
    this suggestion of defence that the
    conversation between the accused and
    24

    Budga were going on in a low voice,
    therefore, he could not hear it.

    17. B. Paneer Selvam (P.W.-10) stated that the
    bribe money was recovered from the junk room
    at the instance of the accused persons.

    18. Close scrutiny of statements of all
    witnesses makes it clear that there is no proof of
    any demand in this case and recovery of tainted
    notes was made from junk room.

    19. In the matter of B. Jayaraj (supra) , Hon’ble
    Apex Court held in para 7 as under:-

    “7. Insofar as the offence under Section 7 is
    concerned, it is a settled position in law that
    demand of illegal gratification is sine qua
    non to constitute the said offence and mere
    recovery of currency notes cannot
    constitute the offence under Section 7
    unless it is proved beyond all reasonable
    doubt that the accused voluntarily accepted
    the money knowing it to be a bribe. The
    above position has been succinctly laid
    down in several judgments of this Court. By
    way of illustration reference may be made
    to the decision in C.M. Sharma v. State of
    A.P.2
    [(2010) 15 SCC 1] and C.M. Girish
    Babu v. CBI3
    [(2009) 3 SCC 779].”

    20. Again Hon’ble Supreme Court in the matter
    of Mukhtiar Singh (supra) held in paras 13 and
    14 which are reproduced here in below:-

    13. The indispensability of the proof of
    demand and illegal gratification in
    establishing a charge under Sections 7
    and 13 of the Act, has by now engaged the
    25

    attention of this Court on umpteen
    occasions. In A. Subair v. State of Kerala 5;

    (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. Rao6;
    (2011) 6 SCC 450 that mere recovery by
    itself of the amount said to have been paid
    by way of illegal gratification would not
    prove the charge against the accused and
    in absence of any evidence to prove
    payment of bribe or to show that the
    accused had voluntarily accepted the
    money knowing it to be bribe, conviction
    cannot be sustained.

    14. In P. Satyanarayana Murthy2; (2015)
    10 SCC 152 this Court took note of its
    verdict in B. Jayaraj v. State of A.P.7;

    (2014) 13 SCC 55 underlining that mere
    possession and recovery of currency notes
    from an accused without proof of demand
    would not establish an offence under
    Section 7 as well as Sections 13(1)(d)(i)
    and (ii) of the Act. It was recounted as well
    that in the absence of any proof of demand
    for illegal gratification, the use of corrupt or
    illegal means or abuse of position as a
    public servant to obtain any valuable thing
    or pecuniary advantage cannot be held to
    be proved. Not only the proof of demand
    thus was held to be an indispensable
    essentiality and an inflexible statutory
    mandate for an offence under Sections 7
    and 13 of the Act, it was held as well qua
    Section 20 of the Act, that any
    26

    presumption thereunder would arise only
    on such proof of demand. This Court thus
    in P. Satyanarayana Murthy2; (2015) 10
    SCC 152 on a survey of its earlier
    decisions on the pre-requisites of Sections
    7
    and 13 and the proof thereof summed up
    its conclusions as hereunder: (SCC p. 159,
    para 23)
    “23 The proof of demand of illegal
    gratification, thus, is the gravamen of
    the offence under Sections 7 and
    13(1)(d)(i) and (ii) of the Act and in
    absence thereof, unmistakably the
    charge therefor, would fail. Mere
    acceptance of any amount allegedly
    by way of illegal gratification or
    recovery thereof, dehors the proof of
    demand, ipso facto, would thus not
    be sufficient to bring home the charge
    under these two sections of the Act.

    As a corollary, failure of the
    prosecution to prove the demand for
    illegal b gratification would be fatal
    and mere recovery of the amount
    from the person accused of the
    offence under Sections 7 or 13 of the
    Act would not entail his conviction
    thereunder.” (emphasis supplied)

    21. This Court in the matter of Shivprasad
    Kuldeep (supra) held in paras 14, 15 and 16 as
    under:-

    “14. in (2009) 3 SCC 779 (C.M. Girish Babu v.
    CBI, Cochin, High
    Court of Kerala), the Supreme
    Court held thus:

    “18. In Suraj Mal v. State (Delhi
    Admn
    .), (1979) 4 SCC 725, this Court
    took the view that (at SCC p. 727,
    27

    para 2) mere recovery of tainted
    money divorced from the
    circumstances under which it is paid
    is not sufficient to convict the accused
    when the substantive evidence in the
    case is not reliable. The mere
    recovery by itself cannot prove the
    charge of the prosecution against the
    accused, in the absence of any
    evidence to prove payment of bribe
    or to show that the accused
    voluntarily accepted the money
    knowing it to be bribe.”

    15. Further, in (2014) 13 SCC 55 (B. Jayaraj v.
    State of Andhra Pradesh
    ), it was held by the
    Supreme Court as under:

    “7. Insofar as the offence under Section 7
    is concerned, it is a settled position in law
    that demand of illegal gratification is sine
    qua non to constitute the said offence and
    mere recovery of currency notes cannot
    constitute the offence under Section 7
    unless it is proved beyond all reasonable
    doubt that the accused voluntarily accepted
    the money knowing it to be a bribe. The
    above position has been succinctly laid
    down in
    several judgments of this Court.
    By
    way of illustration reference may be made
    to the decision in C.M. Sharma v. State of
    A.P.
    , (2010) 15 SCC 1 and C.M. Girish
    Babu v. CBI
    , (2009) 3 SCC 779.

    9. Insofar as the presumption permissible
    to be drawn under Section 20 of the Act is
    concerned, such presumption can only be
    in respect of the offence under Section 7
    and not the offences under Sections 13(1)

    (d) (i) and (ii) of the Act. In any event, it is
    only on proof of acceptance of illegal
    28

    gratification that presumption can be drawn
    under Section 20 of the Act that such
    gratification was received for doing or
    forbearing to do any official act. Proof of
    acceptance of illegal gratification can follow
    only if there is proof of demand. As the
    same is lacking in the present case the
    primary facts on the basis of which the
    legal presumption under Section 20 can be
    drawn are wholly absent.”

    16. Recently, in (2021) 3 SCC 687 (N.
    Vijayakumar v. State of Tamil Nadu
    ), reiterating
    the judgment of C.M. Girish Babu case (supra)
    and B. Jayaraj
    case (supra), it was held by the
    Supreme Court as follows:

    “26. It is equally well settled that mere
    recovery by itself cannot prove the charge
    of the prosecution against the accused.
    Reference can be made to the judgments
    of this Court in C.M. Girish Babu v. CBI,
    (2009) 3 SCC 779 and in B. Jayaraj v.

    State of A.P., (2014) 13 SCC 55. In the
    aforesaid judgments of this Court while
    considering the case under Sections 7,
    13(1)(d)(i) and (ii) of the Prevention of
    Corruption Act, 1988
    it is reiterated that to
    prove the charge, it has to be proved
    beyond reasonable doubt that the accused
    voluntarily accepted money knowing it to be
    bribe. Absence of proof of demand for
    illegal gratification and mere possession or
    recovery of currency notes is not sufficient
    to constitute such offence. In the said
    judgments it is also held that even the
    presumption under Section 20 of the Act
    can be drawn only after demand for and
    acceptance of illegal gratification is proved.
    It is also fairly well settled that initial
    29

    presumption of innocence in the criminal
    jurisprudence gets doubled by acquittal
    recorded by the trial court.”

    22. In light of above, in the present case, it is
    quite vivid that there is no proof of demand as it
    appears that the currency notes were recovered
    from junk room and statements of panch
    witnesses and investigating officer are
    contradictory to each other and other present
    witnesses did not support the prosecution case. It
    is also clear that the complainant stated in his
    application that the demand was made on
    06.11.2004 but as per Ashish Adhikari (P.W.-4),
    accused Umesh Kumar was on leave on
    06.11.2004 and the said fact is evident from
    Ex.D/1 and Ex.D/2. Thus, the prosecution has
    failed to prove the demand and acceptance of
    bribe by the appellants from the complainant
    beyond reasonable doubt.”

    33. In the light of above, in the present case, it is quite vivid that

    the prosecution has failed to prove the essential ingredient

    of demand of bribe. The evidence on record shows that the

    original CPF loan application of the complainant (PW-5) was

    missing and only a photocopy (Ex.P-8) was filed, which

    weakens the prosecution case and raised serious doubt.

    Further, the prosecution witnesses dealing with the CPF

    loan application have not established that any such

    application was ever pending before the accused at the
    30

    relevant time of loan sanction. These circumstances gives

    support to the defence version made in answer to Q. No.120

    in 313 Cr.P.C. statement that no application was received by

    the accused. Consequently, in the absence of reliable proof

    of demand and acceptance of illegal gratification, the

    prosecution has failed to prove its case beyond reasonable

    doubt.

    34. For the foregoing discussion, the appeal is allowed.

    Conviction of the accused/appellant under Sections 7 and

    13(2) r/w 13(1)(D) of the P.C. Act and sentenced imposed

    thereunder are hereby set aside. He is acquitted of the said

    charges.

    35. Since, the instant appeal was prosecuted by the legal

    representative on account of death of the

    accused/appellant, therefore, after allowing the appeal, no

    direction is required for the LRs to furnish personal bond

    under Section 481 BNSS.

    36. The trial Court record along with a copy of this judgment be

    sent back immediately to the trial Court concerned for

    compliance and necessary action.

    Sd/-

    (Rajani Dubey)
    Digitally signed by
    JUDGE
    VIJAYpekde
    BHARATRAO
    PEKDE
    Date: 2026.03.18
    15:35:51 +0530



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here