Vijay Kumar Ahir vs State Of Chhattisgarh on 19 March, 2026

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    Chattisgarh High Court

    Vijay Kumar Ahir vs State Of Chhattisgarh on 19 March, 2026

    Author: Rajani Dubey

    Bench: Rajani Dubey

    Digitally                                          1
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    by AMIT
    PATEL
    
    
    
    
                                                                              2026:CGHC:13273
    
                         The date when The date when the             The date when the
                        the judgment is   judgment is             judgment is uploaded on
                           reserved      pronounced                     the website
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                           07.01.2026          19.03.2026              --           19.03.2026
                                                                                       AFR
    
                             HIGH COURT OF CHHATTISGARH AT BILASPUR
                                         CRA No. 534 of 2008
                Vijay Kumar Ahir S/o Shri Chaitu Ram, aged about 43 years, at present
                working as a (under suspension) Assistant Grade-III, Korar Sub Division
                Office, Bhanupratappur, Police Station- Korer, District- Kanker (C.G.)
                                                                            ... Appellant
    
    
                                                   versus
                State of Chhattisgarh, Anti Corruption Bureau, Raipur, through Special Police
                Establishment Branch Lokayukt, Jagdalpur, District- Baster, Chhattisgarh.
                                                                              --- State
                 _____________________________________________________________
                          For Appellant   : Mr. Shobhit Koshta, Advocate.
                          For State      : Mrs. Shubha Shrivastava, Panel Lawyer
                _____________________________________________________________
                                 Hon'ble Smt. Justice Rajani Dubey
    
                                              C A V Judgement
    
    
                 1.    This appeal is preferred under Section 374 (2) of the Code of Criminal
    
                       Procedure, 1973 against the judgment dated 17.11.2015 passed by
    
                       learned Special Judge (Prevention of Corruption Act, 1988) Dhamtari,
    
                       District- Dhamtari (C.G.) in Special Criminal Case No. 02/2011,
    
                       whereby the appellant has been convicted for the offence punishable
    
                       under Sections 7 and 13 (1) (d) read with Section 13(2) of Prevention of
    
                       Corruption Act, 1988, (for short, "the Act, 1988") whereby the learned
                                         2
    
         trial Court has sentenced the appellant in the following manner with a
    
         direction to run both sentences concurrently:
    
    
          Conviction                    Sentence
          U/S     7    Prevention    of RI for 01 year, pay a fine of Rs.
          Corruption Act, 1988          1000/-,    in    default,   to   undergo
                                        additional R.I. for 04 months.
          U/S 13 (1)(d) read with RI for 02 years, pay a fine of Rs.
          Section 13(2) of Prevention 1000/-,      in    default,   to   undergo
          of Corruption Act, 1988       additional R.I. 04 months.
                            (Both sentences are directed to run concurrently)
    
    2.   The case of the prosecution, as unfolded from the impugned judgment
    
         and the records of the case is that the complainant- Rizvwanul Haq had
    
         applied to the office of the Sub-Divisional Officer (Revenue) for
    
         diversion of his land Plot No. 872, admeasuring 0.08 hectare situated at
    
         Antagarh, District- Kanker (C.G.) for residential purpose. Upon
    
         receiving a notice to appear on 02.11.2004, he appeared on the said
    
         date in the office and where the Reader/accused of the said office wrote
    
         in the back side of notice that for the diversion, premium with penalty
    
         deposited by the challan of Rs. 794/- in the bank and along with the
    
         copy of the challan, demanded Rs. 500/- for himself and Rs. 1,000/- for
    
         the Sub-Divisional Officer, only then would the land diversion order be
    
         granted. The accused demanded the above bribe amount from the
    
         complainant for diversion of the land and therefore, on 20.12.2004, the
    
         complainant Rizvwanul Haq made a written complaint before the Anti
    
         Corruption Bureau, Jagdalpur against the appellant. On the basis of
    
         written complaint of complainant, tape recorder and cassette were
    
         provided to him by the A.C.B. for recording conversation between the
    
         appellant and the complainant regarding the demand of bribe and also
                                      3
    
    produced the complaint's application. A script of the cassette of the
    
    conversation demanding bribe was prepared. On the said complaint, an
    
    offence under Section 7 of Prevention of Corruption Act was registered
    
    and a trap team was constituted and on 23.12.2004 after reaching
    
    Bhanupratappur, the complainant was sent to the accused/ Vijay Ahir in
    
    the Office of Sub-Divisional Officer (Revenue), Bhanupratappur. After
    
    some time, the complainant returned and apprised the trap team that
    
    the accused was demanding the bribe amount in an envelope. In the
    
    presence of witnesses, a separate panchanama was prepared. The
    
    complainant was made to take out the tainted currency notes and then
    
    the said notes were rubbed it on a plain envelope, thereafter the same
    
    was placed inside it and the complainant was carrying the envelope in
    
    his shirt pocket before being sent to the accused. After handing over
    
    the money to the accused, the complainant returned and signaled the
    
    trap team that the accused had kept the envelope in his left pant's
    
    pocket. Then, the members of the trap team entered the accused/
    
    Reader's room, introduced themselves to the accused as the members
    
    of the trap team. The accused fingers' were dipped in an aqueous
    
    solution of sodium carbonate and the colour of the solution turned pink.
    
    The bribe amount of Rs. 1,500/-, a blank envelope, full pant turned light
    
    pink coloured after washing and the official file of the case related to the
    
    land diversion of the complainant were seized from the accused. After
    
    completing necessary formalities, the charge-sheet was led before the
    
    learned trial Court for the offences under Sections 7, 13(1) (d) read
    
    with Section 13 (2) of Prevention of Corruption Act, 1988 against the
    
    appellant followed by framing of charges by the learned trial Court
    
    accordingly, which were abjured by the appellant and he pleaded for
                                         4
    
         trial.
    
    3.   In order to bring home the guilt, the prosecution has examined as many
    
         as 10 witnesses to prove its case against the accused person.
    
         Statement of the accused was also recorded under Section 313 of
    
         Cr.P.C., in which he denied all the incriminating circumstances
    
         appearing against him in the prosecution case and pleaded his
    
         innocence and false implication in the case.
    
    4.   The learned trial Court after hearing the counsel for the respective
    
         parties and considered the material available on record thereby
    
         convicted and sentenced the accused/appellant as mentioned in
    
         inaugural para of this judgment. Hence, this appeal.
    
    5.   Assailing correctness and validity of the impugned judgment of
    
         conviction and order of sentence, learned counsel for the appellant
    
         submits that the impugned judgment assessed against the appellant is
    
         per se illegal and contrary to the material available on record. The
    
         prosecution has failed to prove the necessary ingredients of the offence
    
         beyond all reasonable doubt. Statements of the prosecution witnesses
    
         are full of contradictions and omissions, but the learned trial Court did
    
         not consider the same minutely. Learned trial Court has failed to see
    
         the oral evidence of PW-2 M.S. Dhruw and PW-4 M.C. Netam, who are
    
         the members of the trap team as per the direction of Collector of Bastar
    
         and they have clearly stated in their evidence that when first time the
    
         complainant entered in the office of S.D.O. for giving a bribe amount to
    
         appellant, the complainant after some time returned along with the
    
         bribe amount and they specifically stated that when they trapped the
    
         appellant during that time another 2-3 employees were present and
    
         they did not know what conversation was done between the appellant
                                           5
    
         and the complainant and therefore, no prima facie case is made against
    
         the appellant. The presumption, under section 20 of the P.C. Act is also
    
         not at all applicable in the present case, for want of recovery of bribe
    
         amount from the possession of the appellant. PW-3 Ghanshyam and
    
         PW-7 Ram Sevak Sinha who are the constable, specifically stated
    
         when the complainant reached S.D.O. office, he entered the office and
    
         after half an hour, he returned without giving the bribe amount to the
    
         appellant and apprised to the trap team that appellant will take bribe
    
         amount in the envelope. PW-6 K.P. Dewangan, who was the S.D.O. at
    
         the time of incident had specifically stated when his office received the
    
         diversion's application of the complainant and same sent to on
    
         09.03.04, but the same was not returned in the office. PW-7 Lalit Kumar
    
         Deshmukh who is the Revenue Inspector and was present at the time
    
         of incident and he specifically stated that the the complainant's
    
         diversion case was pending due to not depositing premium with penalty
    
         amount by challan on the part of the complainant. PW-10 M.L. Negi,
    
         who was the Investigating Officer admitted this fact that the script of the
    
         tape recorder was not cleared.
    
    
    6.   Learned counsel for the appellant would further submit that the story of
    
         demand of bribe by the appellant from the complainant is not proved,
    
         but even the story of payment of the money by the complainant is not
    
         established beyond reasonable doubt of that being so, the rule of
    
         presumption engrafted in Section 4(1) of the PC Act, cannot be made
    
         use of for convicting the appellant. Hence, there being no valid proof of
    
         demand, the essential ingredients of offence Under section 7 of the
    
         Prevention of corruption Act regarding demand of bribe and acceptance
                                              6
    
              of bribe money has not established by the prosecution. The prosecution
    
              has failed to establish that what conversation had been happened
    
              between the appellant and complainant while giving or taking bribe
    
              money and transaction of the said money also could not be seen by the
    
              shadow witness, whereas the law always favored to the evidence of the
    
              shadow witness/The trap witnesses is an interested witnesses in the
    
              sense that he is interested to see that the trap laid by him succeeded
    
              and it could not be advisable to rely upon his evidence without
    
              corroboration. Learned trial Court did not minutely appreciate the oral
    
              and documentary evidence on record which make it clear that the
    
              prosecution has utterly failed to prove demand and acceptance of bribe
    
              by the appellant. Hence, the impugned judgment is liable to be set
    
              aside and the appellant be acquitted of all the charges leveled against
    
              him. In support of his contention, he relied upon the judgment passed
    
              by Hon'ble the Apex Court in the matters of P. Somaraju vs. State of
    
              Andhra Pradesh1 and in the matter of Saddam Prasad Thakur,
    
              through legal heirs vs. State of Chhattisgarh Chhattisgarh,2 &
    
              Radheshyam vs. State of Chhattisgarh3 passed by this Court.
    
    
        7.   Ex adverso, learned counsel for the respondent/State supporting the

    impugned judgment submits that the learned trial Court minutely

    appreciated the oral and documentary evidence and thereby rightly

    SPONSORED

    convicted the appellant. Therefore, the impugned judgment does not

    suffer from any irregularity or infirmity warranting interference by this

    Court in the instant appeal.

    1 2025 SCC OnLine SC 2291
    2 CRA No. 1283 of 2003
    3 CRA No. 283 of 2005
    7

    8. Heard learned counsel for the parties and perused the material

    available on record including the impugned judgment.

    9. It is evident from record of learned Trial Court that it framed charges

    against the appellant for offence punishable under Sections 7 & 13(1)

    (d) read with Section 13 (2) of Prevention of Corruption Act, 1988.

    learned trial Court after appreciating the oral and documentary

    evidence, convicted and sentenced the appellant for the aforesaid

    offences.

    10. It is not disputed in this case that at the time of incident i.e., 02.11.2004,

    the accused/appellant was posted in the office of Sub-Divisional Officer

    (Revenue), Bhanupratappur.

    11. PW-1, the complainant- Rizwanul Haq, stated that at the time of the

    incident the accused/appellant was posted as a Reader in the office of

    the Sub-Divisional Officer (Revenue), Bhanupratappur. He had applied

    for diversion of his agricultural land bearing Khasra No. 872, Rakba 20

    decimal. After receiving notice from the S.D.O. office, he appeared

    before the S.D.O. and the accused/ Reader. The accused, after

    calculating the diversion charges, informed him that Rs. 794/- was

    required towards diversion fee with the penalty and the complainant

    deposited the said amount through challan on 21.12.2004. The

    accused further demanded illegal gratification of Rs. 500/- for himself

    and Rs. 1,000/- for the Sub-Divisional Officer for processing and

    completing the diversion work. Pursuant thereto, he deposited a sum of

    Rs. 794/- towards diversion fee with penalty through challan, probably

    on 21.12.2004. He did not want to give the bribe amount to the accused

    and therefore, he filed the written complaint against the accused before
    8

    Deputy Superintendent of Police, Anti Corruption Bureau, Branch-

    Jagdalpur. His written complaint is Ex. P/1, wherein admitted his

    signature on A to A part. Thereafter, Inspector M.L. Negi handed over a

    tape recorder to him and instructed him to record the conversation

    between him and the appellant regarding the demand of bribe. He was

    also guided by Inspector Negi on how to operate and start the tape

    recorder. On 22.12.2004, he went to the Court of the S.D.O. (Revenue),

    Bhanupratappur and met the accused- Vijay Ahir. As instructed, he

    switched on the tape recorder kept in his pocket to record the

    conversation. He entered the office, where 2-3 persons were already

    present and waited until they came out and thereafter, he approached

    the accused, handed over the copy of the challan of Rs. 794/-, and

    asked how much more money was required to be paid. The accused

    replied that not less than Rs. 1,500/- would be required, out of which

    Rs. 500/- was for himself and Rs. 1,000/- for the officer. The said

    conversation was recorded by him. Thereafter, he returned to the office

    of the Anti-Corruption Bureau, Jagdalpur along with the tape recorder,

    met Inspector M.L. Negi again and the recorded conversation was

    transcribed into a script in the office. After completion of the preliminary

    proceedings, on the next day the complainant went along with the trap

    team to the office of the S.D.O. (Revenue), Bhanupratappur where the

    bribe amount so demanded by the accused was accepted by him in an

    envelope. Upon such demand and acceptance, the complainant, as

    instructed earlier, signaled the trap party by making a predetermined

    gesture. Thereafter, the trap team immediately apprehended the

    appellant along with the bribe amount and the envelope. He admitted

    his signature in F.I.R. (Ex. P/2) intimation (Ex. P/3) given by him to
    9

    A.C.B, memo (Ex. P/4), seizure memo of transcription (Ex.P/5),

    preliminary memo (Ex. P/6), memo (Ex.P/7), proceeding memo (Ex.

    P/8), application for diversion (Ex.P/9), notice issued by Revenue

    Inspector vide Ex. P/10 and in challan copy (Ex. P/11). In his cross-

    examination, he stated that at the time when he submitted the

    application for diversion, he did not remember whether he had met

    Verma Sir or the appellant. He further stated that whenever he visited

    the office, the appellant used to meet him. However, he also stated that

    neither he remember the exact occasion when the appellant allegedly

    demanded the bribe amount, nor could he recall the date of such

    demand. He admitted the suggestion that when he initially got down

    from the jeep and approached the accused to hand over the money, as

    directed by Mr. Negi and the officer, the accused did not accept the

    same at that time. He himself stated that the accused had asked him to

    bring the money by keeping it in an envelope.

    In para 15, he stated as under:-

    ” 15….यह कहना गलत है कि जब मैं जाकर बताया कि आरोपी ने पैसा नहीं

    लिया तब उन्होंने मुझे डांटकर लिफाफा में पैसा रखकर आरोपी को देकर आने को

    कहा I स्वतः कहता है कि मेरे द्वारा पैसे नहीं लेने की बात बताने पर श्रो नेगी ने अपने

    अधिकारियों से चर्चा कर मुझे निर्देश दिया। फिर अधिकारी लोग स्वतः पास के

    स्टेशनरी दक
    ु ान से लिफाफा लेकर आये। यह सही है कि जब मैं लिफाफा लेकर एस.

    डी. ओ. आफिस मैं घुसा तब 5 मिनिट बाद अधिकारी लोग भी आ गये। मैंने

    लिफाफा उसकी जेब मैं नहीं डाला था। स्वतः कहा कि उसने पेपर में उक्त लिफाफा

    को लिया। था । मुझे नहीं मालूम कि पैसे देते समय आर.आई.देशमुख एवं प्रकाश

    तिवारी थे या नहीं I”

    In paragraph 17 of his cross-examination, the complainant
    10

    stated that he did not lodge or submit any complaint before the

    office of the S.D.O. regarding the alleged demand of bribe

    amount by the appellant and he could not explain why he failed

    to do so.

    12. PW-2 M.S. Dhruw stated that following the Collector’s directions,

    he was a member of the trap team. He testified that on the

    complainant’s gesture, they seized the envelope containing the

    bribe amount from the appellant and he admitted his signatures on

    Ex.P/7 to Ex.P/14.

    In para 8 of his cross-examination, he admitted as under:-

    “8… यह सही है कि हम लोग एस.डी. ओ. आफिस भानुप्रतापपुर के

    आसपास खड़े हो गये, कमरे में क्या हो रहा था दिखाई नहीं दे रहा था। जब

    प्रार्थी एस.डी.ओ. आफिस के कमरे में गया था उस समय लोगों का कमरे के

    अंदर आना जाना चल रहा था, कमरे में भी लोग रहे होगें। यह सही है कि

    रिजवानुअल हक प्रार्थी शुरू मैं पैसे देने के लिये एस. डी. ओ. आफिस गया

    था, किंतु वह तुरत पैसे लेकर वापिस आ गया। यह कहना गलत है कि

    रिजवानुअल हक ने बताया कि आरोपी ने पैसा लेने से इंकार कर दिया। यह

    कहना गलत है कि नेगी साहब प्रार्थी पर नाराज हो गये और लिफाफा में

    भरकर देकर आओ। लिफाफा पर पावडर गार्ड द्वारा लगवाया गया था। सही

    है कि जब लिफाफा लेकर दबु ारा प्रार्थी गया उस समय अभियुक्त और प्रार्थी

    के बीच क्या बात हुई मैं नहीं बता सकता। प्रार्थी जैसे लिफाफा रखकर बाहर

    आया तब हम अंदर गये । सही है कि लिफाफा अभियुक्त के जेब मैं था। मुझे

    आज याद नहीं है कि जैसे ट्रेप दल के सदस्य एस. डी. एम. कार्यालय के

    अंदर घुसे एवं परिचय बताए तो वहाँ पर उपस्थित अभियुक्त के अलावा दो

    और कर्मचारी ने कहा कि रिजवानुअल हक जबरजस्ती लिफाफा रखकर

    चला गया है।”

    11

    13. PW-3 Ghanshyam Sahu, Constable, Anti-Corruption Bureau, Jagdalpur,

    stated that he prepared the transcription (Ex.P/15) with the help of

    complainant- Rizvwanul Haq. He further stated that he seized the

    cassette (Ex.P/5) and participated in the preliminary proceedings. He

    testified that they apprehended the accused in his office, seized the

    tainted currency notes from his pant, prepared an aqueous solution of

    sodium carbonate, conducted a wash of the accused’s hands which

    turned the solution pink and he admitted his signatures on Ex.P/13 to

    Ex.P/18.

    In paras 12 of his cross-examinations, he admitted that after listening

    to the tape recorder, he prepared the transcript based on the

    complainant’s description of the voice. He further admitted that in many

    places of the tape recorder were unclear. In our office, Mr. Dhaghat was

    in charge. DSP- Mr. Dhaghat accompanied them from Jagdalpur to

    Bhanupratappur and all proceedings were conducted in his presence.

    In para 13 of his cross-examination, he deposed that the complainant

    proceeded to the SDO’s office on the instructions of the trap team and

    remained there for approximately half an hour. He stated that he cannot

    say what transpired between the complainant and the accused during

    that time and that the complainant returned with the bribe amount after

    half an hour.

    14. PW-4 M.C. Netam, Assistant Registrar, Co-operative Society,

    Jagdalpur, stated that as per the Collector’s directions, he was also a

    member of the trap team. He deposed that when the complainant

    entered the SDO’s office to give the bribe amount to the accused, he

    returned shortly thereafter with the money and apprised to Mr. Negi that

    the accused- Ahir had demanded the bribe amount in an envelope. Mr.
    12

    Negi then instructed the complainant to procure a blank envelope from

    a stationery shop, which he did, inserted the currency notes into it and

    was directed to hand it over to the accused.

    In para 12 of his cross-examination, he admitted that ” यह सही है

    की जब प्रार्थी शुरू में पैसा देने गया था उस समय वह अकेला गया था यह सही है की

    जब प्रार्थी प्रथम बार पैसा लेकर गया उस समय कौन कौन कर्मचारी बैठे थे मैंने नहीं

    देखा था I यह कहना सही है कि उस वक्त प्रार्थी एवं आरोपी के बीच क्या बाते हुई नहीं

    बता सकता। यह सही है की प्रथम बार फरियादी पैसा लेकर गया था उसको वापिस ले

    आया था उसके बाद नेगी साहब को बताया I उस वक्त मैं और नेगी साहब 10 कदम दरु ी

    पर रहे होंगे फरियादी जब निकलकर आया उस समय नेगी साहब से क्या बात हुई नहीं

    सुना I फिर दोबारा लिफाफा मंगवाकर पैसा लिफाफे में डालकर प्रार्थी को दिया I यह

    कहना गलत है की धगड़ साहब जगदलपुर से भानुप्रतापपुर तक साथ में गए थे I साक्षी

    एम. एल. साहू आरक्षक उपस्थित थे यह कहना सही है की आरक्षक एम. एल. साहू

    हमारे साथ जगदलपुर से ही रवाना हुआ था यह कहना सही है की घनश्याम साहू भी

    ट्रैप दल के साथ मौजूद था I ”

    Further in para 14 of his cross-examination, he admitted that ” यह

    कहना सही है की फरियादी की शर्ट में रिश्वती रकम रखा गया उस शर्ट को न जप्त किया

    और न ही धुलवाया गया था…”

    15. PW-6 K. P. Dewangan, Joint Collector has stated that at the time of

    incident he was posted as Sub-Divisional Officer, Bhanupratappur.

    In paras 5, 6 and 7 of his cross-examinations, he admitted as

    under:-

    “5. यह सही है कि रिजवान खान का जो डायवर्सन प्रकरण था, वह मेरे

    कार्यालय से 9.3.04 को डायवर्सन सेक्शन भेज दिया गया था। उसके बाद से

    उक्त प्रकरण ट्रेप होते तक हमारे कार्यालय में वापिस नहीं आया। यह सही है

    9.3.04 के बाद से जिस दिन लोकायुक्त वालों ने ट्रेप किया, एवं आरोपी को

    गिरफ्तार किये, तब तक रिजवानुल हक का डायवर्सन केस हमारे कार्यालय में
    13

    किसी कारण वे लंबित नहीं था, और न ही किसी कर्मचारी ने लंबित रखा था I

    6. यह सही है कि आरोपी मूल कर्मचारी तहसील का है। यह सही है कि चुनाव

    कार्य के कारण कुछ दिन मेरे कार्यालय में अस्थायी तौर पर श्रीमती मरकाम के

    सहायक के रूप में रखा गया था। यह सही है कि अभियुक्त मई 04 से श्रीमति

    मरकाम को कार्यभार सौंप चुके थे। परंतु मरकाम मेडम को सहायता करते थे।

    यह सही है कि पहले मेरा रीडर श्री शंकर सिंह वर्मा थे। यह सही है कि श्री वर्मा

    के बाद, राजकुमारी मरकाम को सहा. ग्रेड. दो के पद पर नियुक्त किया था ।

    श्रीमति मरकाम उस समय चुनाव कार्यालय में कार्यरत् थी, और व्यस्त होने के

    कारण आरोपी को बोला गया कि मरकाम के चार्ज लेते तक अस्थायी रूप से

    कार्य करते रहो। यह सही है कि अभियुक्त उस अवधि में श्रीमति मरकाम के

    सहायक के रूप में कार्य करते थे। उपरोक्त पत्र प्र.डी. । है जो फोटो कापी है डी-

    1 जिसमें गवाह का अ से अ भाग पर हस्ताक्षर है।

    7. यह सही है कि श्री नेगी ट्रेप करने के बाद मेरे चैम्बर मैं आए थे , और उन्होंने

    बताया कि आरोपी का हाथ धुलाने से रंग नहीं निकला था यह सही है कि मुझे

    बताया गया था कि रिजवान जब सरपंच थे उस समय राशि गबन की थी, जिस

    संबंध में जांच के आदेश एवं रिपोर्ट दर्ज करने हेतु भी लिखा था। ”

    16. PW-9 Lalit Kumar Deshmukh, Revenue Inspector, categorically

    deposed that he had issued notice to the complainant, Rizvwanul Haq,

    and thereafter prepared the report pertaining to diversion proceedings.

    He unequivocally admitted his signature on document Ex. P/37.

    In para 05 of his cross-examination, he admitted as under:-

    “5. यह सही है कि घटना दिनांक जिस दिन लोकायुक्त वाले आये थे उस दिन

    सरपंचनों का आरोपी के ही कमरा मैं रजि०जांच कर रहा था, वहाँ पर उस समय

    प्रकाश तिवारी को भी ड्यूटी लगी हुई थी। उसी समय प्रार्थी आया, और हमलोगों

    से हाथ मिलाया और कहा कि मैं शादी में जा रहा हूँ, थोड़ा देर मैं आऊंग बोला

    था । उस समय मैंने प्रार्थी एवं आरोपी के मध्य क्या बात हुई , मैं नहीं सुना दबु ारा

    कुछ देर बाद आया और चला गया। प्रकाश तिवारी भी घटना के समय वहां पर
    14

    था । जब लोकायुक्त वाले कमरा में आया, तो मैं सुना था । यह सही है कि

    लोकायुक्त आये तो आरोपी बोला कि क्या है मैं नहीं जानता, किन्त प्रार्थी उसके

    जेब मैं कुछ डालकर चला गया है। यह सही है कि डायवर्सन का जो काम था, वह

    प्रार्थी के चालान नहीं पटाने से रुका था, किसी कर्मचारी द्वारा रोका नहीं गया था।

    मैं आरोपी का हाथ धुलवाने के समय था। लोकायुक्त वाले करीब चार आदमी थे।

    मैं पुलिस के बड़े साहब थे कि नहीं मैं नहीं पहचानता। ”

    17. PW-10 M.L. Negi, Inspector in the Anti Corruption Bureau, Jagdalpur,

    emphatically deposed that he conducted all the proceedings in the

    matter and unequivocally admitted his signature on all the relevant

    documents.

    In para 19 of his cross-examination, he admitted as under:-

    “19. यह सही है कि शुरू मैं प्रार्थी शिकायत करने आया था, उस शिकायत

    को लेने के बाद उसे टेप दिया गया था। टेप रिकार्ड का स्क्रीप्ट श्री धनश्याम

    साहू द्वारा तैयार किया गया है। यह सही है कि उक्त स्क्रीप्ट मैं बहुत जगह पर

    अस्पष्ट लिया हुआ है। यह सही है कि उस अस्पष्ट वाली जगह मैं क्या लिया

    है, मैं नहीं बता सकता, क्योंकि क्लियर बात नहीं होने से अस्पष्ट लिखा जाता

    है। यह कहना गलत है कि जहाँ पर अभियुक्त द्वारा इंकार कर दिया गया हो,

    उस स्थान पर अस्पष्ट लिखा गया है। यह सही है कि उस दौरान श्री धगट

    एस o डी०ओ०पी० हमारे कार्यालय में पदस्थ थे। स्वतः कहा कि वे अवकाश

    पर थे ।

    In para 22 of his cross-examination, he stated as under:-

    “22. …..प्रार्थी लिफाफा में जब पैसा लेकर गया, उसके दो-तीन मिनट बाद

    आया, जस समय प्रार्थी इर्शारा नहीं किया, सीधे आकर बताया कि दे दिया

    हूँ उस समय उस कक्ष में दो-तोन कर्मचारी और भी थे, जिसमें देशमुख भी

    था ।… ”

    18. Ex. P/15 is a transcript of the conversation between the complainant

    and the accused, recorded on a tape recorder. However, it is clear from
    15

    Ex. P/15 that in various places, the words are marked as “unclear”

    (अस्पष्ट), showing that some parts of the conversation could not be

    properly heard or written down.

    19. PW-3 Ghanshyam Sahu, Constable in the office of Anti-Corruption

    Bureau, Jagdalpur that he prepared the transcript of the conversation

    between the complainant- Rizawanul Haq and the accused- Ahir.

    In para 12 of his cross-examination, he admitted as under :-

    “12. सही है कि टेप का आवाज सुनने के बाद प्रार्थी द्वारा आवाज के बारे में

    बताने पर मैंने स्क्रिप्ट तैयार की थी I यह कहना सही है कि टेप में बहुत सी बाते

    अस्पष्ट है…..I”

    20. The complainant, Rizvwanul Haq along with both shadow witnesses,

    admitted that the accused did not receive the bribe amount on the first

    attempt. They stated that the bribe was demanded in an envelope by

    the accused and it was suggested by defence that members of the trap

    team had instructed the complainant to place the tainted currency notes

    in an envelope. As per all witnesses, the envelope was purchased from

    a stationery shop and before placing the tainted currency notes inside,

    the notes were rubbed on an envelope. The complainant then

    approached the accused again to hand over the bribe amount along

    with the envelope.

    21. The defence of the accused is that at the relevant time, no case was

    pending of the complainant before his office.

    22. PW-6 K.P. Dewangan admitted the defence’s suggestion that the

    complainant’s diversion case had been forwarded to the Diversion

    Section on 09.03.2004 and had never returned to his office until the
    16

    trap was conducted.

    23. The learned trial court convicted the accused for the recovery of

    currency notes, but failed to consider whether the demand for the bribe

    amount had been established.

    24. It has been held by the Hon’ble Apex Court in the matter of P.

    Somaraju (supra) in paras 18 and 19, which read as under:-

    “18. The statutory presumption under Section 20 of the

    PC Act is not automatic and arises only once the

    foundational facts of demand and acceptance are

    proved. The same has been reiterated time and again by

    this Court; in the recent decision of Rajesh Gupta vs.

    State4 through Central Bureau of Investigation,9 it was

    held:

    “17. For an offence under Section 7 of PC Act,
    the demand of illegal gratification is a sine qua
    non to prove the guilt. Mere recovery of
    currency notes cannot constitute an offence
    under Section 7 of PC Act, unless it is proved
    beyond reasonable doubt that accused
    voluntarily accepted the money, knowing it to
    be a bribe. The proof of acceptance of illegal
    gratification can follow only if there is proof of
    demand.”

    19. It is therefore vital to examine these elements before

    the circumstance of recovery can assume any

    significance. We once again rely on the observation of

    this Court in Rajesh Gupta (supra):

    4 2022 INSC 359
    17

    “16. ….The law is well-settled by the judgments
    of this Court in Panna Damodar Rathi vs. State
    of Maharashtra
    (1979) 4 SCC 526 and Ayyasami
    vs. State of Tamil Nadu (1992) 1 SCC 304,
    whereby it has been clarified that the sole
    testimony of the complainant, who is the
    interested witness, cannot be relied upon
    without having corroboration with the
    independent evidence.”

    25. It has been held by this Court in the matter of Radheshyam (supra) in

    para 11 which reads as under:-

    “11.The Hon’ble Apex Court held in the matter of Ziyauddin

    Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, LAWS

    (SC) 1975 48, in paragraphs 19 & 24 which reads as under: –

    “19. We think that the High Court was quite right in

    holding that the tape records of speeches were

    “documents”, as defined by Section 3 of the Evidence

    Act, which stood on no different footing than

    photographs, and that they were admissible in

    evidence on satisfying the following conditions:

    (a) The voice of the person alleged to be

    speaking must be duly Identified by the maker

    of the record or by others who know it.

    (b) Accuracy of what was actually recorded

    had to be proved by the maker of the record

    and satisfactory evidence, direct or

    circumstantial had to be there so as to rule out

    possibilities of tampering with the record.
    18

    (c) The subject matter recorded had to be

    shown to be relevant according to rules of

    relevancy found in the Evidence Act.

    These requirements were deduced by High Court from

    R. v. Maqsud Ali, [1965] 2 All ER 464.

    24. As regards the shorthand transcripts of the tape

    records, the evidence of their makers is there. It is

    certainly corroborative inasmuch as it only goes to

    confirm what the tape records contained. The tape

    records were the primary evidence of what was

    recorded. The transcripts could be used to show what

    the transcriber had found recorded there at the time

    of the transcription. This operated as a check against

    tampering. They had been rightly used by the High

    Court only as corroborative evidence.”

    26. It has been held by this Court in the matter of Saddam Prasad Thakur

    (supra) in paras 13, 14 & 15 which read as under:-

    “13.In this case, transcription of tape recorder Is Ex.-P/12,

    tape recorder was given to the complainant for verification of

    his complaint as record of the documentary evidence. As

    regards the documentary evidence i.e. transcription of tape-

    recorder (Ex.-P/12), the High Court of Madhya Pradesh, in the

    matter of Rajaram (Supra) has held in para 14 and 15, which

    read thus:-

    “14. Any documentary evidence by way of an

    electronic record under the Evidence Act, in
    19

    view of Sections 59 and 65A, can be proved

    only in accordance with the procedure

    prescribed under Section 65B. Section 65B

    deals with the admissibility of the electronic

    record. The purpose of these provisions is to

    sanctify secondary evidence in electronic form,

    generated by a computer. It may be noted that

    the Section starts with a non obstinate clause.

    Thus, notwithstanding anything contained in

    the Evidence Act, any information contained in

    an electronic record which is printed on a

    paper, stored, recorded or copied in optical or

    magnetic media produced by a computer shall

    be deemed to be a document only if the

    conditions mentioned under sub-Section (2) are

    satisfied, without further proof or production of

    the original. The very admissibility of such a

    document, I.e., electronic record which is called

    as computer output, depends on the

    satisfaction of the four conditions under

    Section 65B(2). Following are the specified

    conditions under Section 65B(2) of the

    Evidence Act.

    (i) The electronic record containing the

    information should have been produced by the

    computer during the period over which the

    same was regularly used to store or process
    20

    information for the purpose of any activity

    regularly carried on over that period by the

    person having lawful control over the use of

    that computer;

    (ii) The Information of the kind contained in

    electronic record or the kind from which the

    information is derived was regularly fed into

    the computer in the ordinary course of the said

    activity;

    (iii) During the material part of the sald period,

    the computer was operating properly and that

    even if it was not operating properly for some

    time, the break or breaks had not affected

    either the record or the accuracy of its

    contents; and

    (iv) The information contained in the record

    should be a reproduction or derivation from the

    Information fed into the computer in the

    ordinary course of the said activity.

    15.Under Section 65B(4) of the Evidence Act, if it is

    desired to give a statement in any proceedings

    pertaining to an electronic record, it is permissible

    provided the following conditions are satisfied:

    a) There must be a certificate which identifies the

    electronic record containing the statement;

    (b) The certificate must describe the manner in

    which the electronic record was produced;
    21

    (c) The certificate must furnish the particulars of

    the device Involved in the production of that

    record;

    (d) The certificate must deal with the applicable

    conditions mentioned under Section 65B(2) of the

    Evidence Act; and

    (e) The certificate must be signed by a person

    occupying a responsible official position in relation

    to the operation of the relevant device.

    14. Hon’ble Supreme Court in the matter of Ram Singh

    (supra), held that a tape-recorder statement is

    admissible in evidence, subject to the following

    conditions:-

    (1) The voice of the speaker must be identified by the

    maker of the record or other persons recognising his

    voice. Where the maker is unable to identify the voice,

    strict proof will be required to determine whether or not

    it was the voice of the alleged speaker.

    (2) The accuracy of the tape-recorder statement must be

    proved by the maker of the record by satisfactory

    evidence; direct or circumstantial.

    (3) Possibility of tampering with, or erasure of any part

    of, the tape-recorder statement must be totally

    excluded.

    (4) The tape-recorder statement must be relevant.

    (5) The recorded cassette must be sealed and must be

    kept in safe or official custody.

    22

    (6) The voice of the particular speaker must be clearly

    audible and must not be lost or distorted by other

    sounds or disturbances.

    15. Further, in para 32, It has been held, which reads thus:-

    32. Thus, so far as this Court is concerned, the conditions

    for admissibility of a tape-recorder statement may be stated

    as follows:

    (1) The voice of the speaker must be duly identified by

    the maker of the record or by others who recognise his

    voice. In other words, it manifestly follows as a logical

    corollary that the first condition for the admissibility of

    such a statement is to identify the voice of the speaker.

    Where the volce has been denied by the maker it will

    require very strict proof to determine whether or not it

    was really the voice of the speaker.

    (2) The accuracy of the tape-recorder statement has to be

    proved by the maker of the record by satisfactory

    evidence-direct or circumstantial.

    (3) Every possibility of tampering with or erasure of apart

    of a tape-recorder statement must be ruled out otherwise

    it may render the said statement out of context and,

    therefore, inadmissible.

    (4) The statement must be relevant according to the rule

    so far Evidence Act.

    (5) The recorded cassette must be carefully sealed and

    kept in safe or official custody.

    (6) The voice of the speaker should be clearly audible
    23

    and not lost or distorted by other sounds or

    disturbances.

    27. In light of the above judgments and in the present case, it is observed

    that PW-3- Ghanshyam Sahu deposed that he prepared the transcript

    of the conversation between the complainant and the accused.

    However, from the statement of PW-3 and the judgment of the learned

    trial court, it remains unclear whether the tape recording itself was

    actually played and heard by the trial court during the proceedings. PW-

    3 further stated that he identified the voice of the accused based on the

    identification made at the instance of the complainant. This raises a

    significant concern regarding the evidentiary value of the transcript

    under the provisions of the Prevention of Corruption Act, as the

    identification of the voice was not independently verified by the court

    and relies primarily on the complainant’s assertion. Moreover in Ex.

    P/15, various places written as unclear (अस्पष्ट ).

    28. It is also evident from the statement of the complainant (PW-1) and

    other witnesses that the accused initially denied receiving any bribe

    amount. Subsequently, the complainant handed over the bribe amount

    in an envelope to the accused.

    29. Minute examination of the above evidence adduced by the prosecution,

    the entire case of the prosecution is suspicious as there is no

    corroborative evidence of demand. Trap witnesses and the

    Investigating Officer have admitted the suggestion of the defence that

    other persons were present in the office of the accused when the bribe

    amount was delivered; however, the prosecution did not examine any

    independent witnesses. It also remains unproven whether a diversion
    24

    case was pending before the Court of S.D.O., Bhanupratappur at the

    relevant time. Moreover, the prosecution witnesses admitted that the

    accused was not posted as a Reader in the said office at that time, and

    except for the complainant, no other witnesses were produced to

    substantiate the alleged demand of the bribe amount.

    30. It has been held by the Hon’ble Apex Court in the matter of State of

    Punjab vs. Madan Mohan Lal Verma5 in para 11 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 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 a bribe.

    Mere receipt of the amount by the accused in not

    sufficient to fasten guilt, in the absence of any

    evidence with regard to demand and acceptance

    of the amount as illegal gratification. Hence, 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.

    5 (2013) 14 SCC 153.

    25

    While Invoking the provisions of Section 20 of

    the Act, the court is required to consider the

    explanation offered by the accused, if any, only

    on the touchstone of preponderance of

    probability and not on the touchstone of proof

    beyond all reasonable doubt. However, before the

    accused is called upon to explain 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.

    In a proper case, the court may look for

    Independent corroboration before convicting the

    accused person.

    31. So far as recovery is concerned, the defence of the accused/ appellant

    is that he denied accepting any bribe amount and claimed that the

    complainant- Rizwanul Haq (PW-1) later handed it over under

    compulsion in an envelope. So looking to the whole story of the

    prosecution, statement of the complainant, defence witness and search

    witness, the entire story narrated by the prosecution becomes doubtful.

    Therefore, the conviction imposed upon the accused/appellant by the

    learned trial Court is not sustainable and the appellant is entitled to get

    the benefit of doubt.

    32. Ex consequenti, the appeal is allowed. The impugned judgment is set
    26

    aside and the appellant is acquitted of the aforesaid charges.

    33. The appellant is reported to be on bail. Keeping in view the provision of

    Section 481 of BNSS, 2023., the appellant is directed to furnish the

    personal bond a sum of Rs. 25,000/- before the Court concerned which

    shall be effective for a period of six months along with an undertaking

    that in the event of filing of special leave petition against the instant

    judgment or for grant of leave, the aforesaid appellant on receipt of

    notice thereof, shall appear before the Hon’ble Supreme Court.

    34. The trial Court record along with a copy of this judgment be sent back

    immediately to the trial Court concerned for compliance and necessary

    action.

    Sd/-

    (Rajani Dubey)

    JUDGE
    AMIT PATEL



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