Dev Darshan Sud, J.
The State has challenged the acquittal of the respondent, who was charged for offences under Section 7 and 13 (2) of the Prevention of Corruption Act (hereinafter referred to as the âAct). F.I.R. No.4 of 2010 dated 4.3.2010 was registered by the Police Station, State Vigilance Anti Corruption, Solan.
2. The prosecution case in brief is that on 4.3.2010 complainant PW-3 Sh. Ashok Kumar telephonically informed Inspector PW-15 Sh. Daya Sagar that Patwari of Patwar Circle Shamti accused Mahanand had made a demand for Rs.3,000/- for entering a mutation pertaining to the land of the complainant. The complainant was directed to meet the officials of the Vigilance department at Samlech Bye Pass, Solan. Statement of the complainant under Section 154 Cr. P.C. was recorded. He states that he is a mechanic by profession. His father had land holdings in Shamti and after his death this land fell to his share along with that of his mother and sister. He had asked the Patwari that mutation to be carried out recording this factum. He had filed an application before the Patwari (accused) but till date no action has been taken. He states that whenever the Patwari meets him, he had given assurance to do his work. On the day before this incident, the Patwari met him at Solan bazaar and told him that he should come to the Patwarkhana along with three thousand rupees and his work would be done. He states that he did not want to pay any bribe and in this eventuality action be taken against the accused. F.I.R. Ext.PW8/A was registered.
3. The case of the prosecution is that a pre-trap demonstration on the use of phenolphthalein powder and sodium carbonate was given, six currency notes of Rs. 500/- each were produced by the complainant, their numbers were noted, the currency notes were treated with phenolphthalein powder and handed over to the complainant with the direction to keep them in his pocket and to hand them over to Patwari. The parties then proceeded towards the Patwarkhana. After receiving a signal from the complainant, the Vigilance officials caught hold of the accused and thereafter his hand was washed with the solution of sodium carbonate which changed its colour to pink. The numbers of the currency notes were noted. Copy of the application of the complainant addressed to Assistant Collector-II Grade, Solan along with copy of mutation No.600 were taken into possession. The accused has denied acceptance of any money for entering into the mutation as claimed by the prosecution. His case is that he was sitting inside the Patwarkhana and at around 2 p.m. the complainant called him outside. At that time the complainant inserted something into his jacket upon which he caught hold of the accused. On the evidence as produced, the learned trial Court has acquitted the accused.
4. The learned trial Court has acquitted the accused holding that the complainant has admitted his signatures over mutation No.600 (Ext. DA) entered on 5.5.2008. The Court notes that the evidence of PW-3 Sh. Ashok Kumar, PW4 Sh. Mohan Lal and PW9 Sh. Rajinder Kumar and PW-15 Inspector Daya Sagar contained different versions with respect to the mode of pre-trap demonstration. The prosecution did not claim anybody to be the shadow witness whereas PW-3 Sh. Ashok Kumar claimed that he had given a ring through his mobile but PW-4 Mohan Lal did not testify to this fact. PW9 Sh. Rajinder Kumar claimed to be the shadow witness but stated that the Vigilance officials entered the Patwarkhana after a signal had been given by PW3 Sh. Ashok Kumar. PW3 Sh. Ashok Kumar does not state anything about the hand wash of the accused being collected in bottle Ext.P9. PW4 Mohan Lal also did not state anything about the wash of the pocket of jacket of the accused. The learned court has examined these facts in detail and holds that in these circumstances coupled with the other facts, the prosecution has not proved the offence. Mutation Ext. DA bears the signatures of the complainant. The recovery of original application Ext.PW2/A, copy of the judgment Ext.PW2/B vide seizure memo Ext.PW2/C has been claimed pursuant to disclosure statement Ext.PW10/A made on 7.3.2010. PW10 HHC Sh. Babu Ram stated in cross examination that the accused was in his custody since 4.3.2010 with Constable Balbinder Singh and no independent witness was associated. But PW2 Sh. Ram Chand, who was the then Field Kanungo, states about the recovery of these documents but in cross examination he states that the key of the Patwarkhana was with the Vigilance officials and it was only handed over to him on 7.3.2010 after the alleged recovery. PW3 complainant Sh. Ashok Kumar stated in his cross examination that Almirah of the Patwarkhana was searched by the vigilance officials on 4.3.2010. In these circumstances this recovery itself becomes doubtful. The learned Court notes and rightly so that in these circumstances the possession of the document was not proved to be with the accused. Prior to the accused being posted there on 2.1.2007, there is no link as to with whom these documents were to be kept in safe custody. PW5 Sh. Sant Ram, who was Tehsildar, has admitted in his cross examination that the receipt of communication is recorded in the daily dispatch register but there is no receipt with respect to these documents.
5. Copy of the application Ext.PW4/A (Original Ext.PW2/A) is dated 29.11.2006 when the accused was not posted as Patwari in Shamti Circle and the mutation itself stands entered on 5.5.2008 which has been signed by the accused. In these circumstances the case was dismissed.
6. Learned Additional Advocate General urges that the learned trial Court was in grave error in ignoring the fact that the evidence of PW3 complainant Sh. Ashok Kumar, PW4 Sh. Mohan Lal and PW9 Sh. Rajinder Kumar corroborated each other on the question of recovery of the tainted money from the accused and that the report of the Forensic Science Laboratory Ext.PW8/C states that phenolphthalein and sodium carbonate were present on the currency notes, coupled with the statement made under Section 27 of the Evidence Act and Ext.PW6/A which is the diary dispatch register, conclusively established the complicity of the accused.
7. Adverting to the first aspect, the learned trial Court has considered the evidence of all these three witnesses and that of PW15 Inspector Daya Sagar to hold that there are material contradictions in the evidence. As noted supra, PW3 Sh. Ashok Kumar has stated that he had given a ring through his mobile as signal but PW4 Mohan Lal did not state anything regarding this signal. PW9 Rajinder Kumar claimed to be a shadow witness but does not support the case of the prosecution on material particulars. A reading of his evidence shows that he has denied each and every aspect of the statement made before the Police under Section 161 of the Code of Criminal Procedure relating to pre-trap demonstration and preparation for the raid etc. as also the manner in which the raid was conducted about the hand wash and the recovery of the currency. I am alive to the law that statement under Section 161 Cr. P.C. does not constitute substantive evidence. In Rajendra Singh Vs. State of U.P. and another (2007) 7 SCC 378, the Supreme Court holds:
â7. The High Court has basically relied upon the statements of six witnesses which had been recorded by the investigating officer under Section 161 Cr. P.C. to record a positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement under Section 161 Cr. P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of section 162 Cr. P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crimeâ.
(P.385)
8. In Vijender Vs. State of Delhi (1997) 6 SCC 171, the court holds:
â15â¦â¦â¦â¦On perusal of their testimonies we are surprised to find that the trial Judge permitted the prosecution to let in statements made by Jitendra (PW2) to them in utter disregard of the provisions of Section 162 Cr. P.C., which lays down an elementary but fundamental principle to be followed in criminal trial that a statement made before a police officer during investigation cannot be used for any purpose whatsoever, except when it attracts the provisions of Section 27 or Section 32(1) of the Evidence Act. If, however, such a statement is made by a witness examined by the prosecution it may be used by the accused to contradict such a witness, and with the permission of the Court, by the prosecution in accordance with Section 145 of the Evidence Actâ¦..â
(P.178)
9. In Binay Kumar Singh Vs. State of Bihar (1997) 1 SCC 283, the Supreme Court holds:
12. The credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in court. This principle is delineated in Section 155(3) of the Evidence Act and it must be borne in mind when reading Section 145 which consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides that "if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which is inconsistent with his present stand his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section.
13. In Bhagwan Singhs Vs State of Punjab, AIR 1952 SC 214 case, Vivian Bose J. pointed out in para 25 that during Cross-examination of the witnesses concerned the formalities prescribed Section 145 are complied With. The cross-examination in that case indicated that every circumstance intended to be used as contradiction was put to him point by point and passage by passage. Learned Judges were called upon to deal with an argument that witnesses attention should have been specifically drawn to that passage in addition thereto. Their Lordships were, however, satisfied in that case that the Procedure adopted was in substantial compliance with Section 145, and hence held that all that is required is that the witness must be treated fairly and must be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. On the facts of that case, there is no dispute with the proposition laid therein.
(P.290 and 291)
10. I need not multiply precedent any further save and except that the credibility of this witness was important being a shadow witness which has to be considered. Taking into consideration the totality and the other facts proved and established on the record and as considered by the learned trial Court, the testimony of this witness is full of contradiction and no part of the statement can be taken in isolation. In these circumstances, the learned trial Court was right in holding that this witness cannot be relied upon.
11. The most important aspect of the matter is that original application Ext.PW2/A and copy of judgment Ext.PW2/B were recovered on 7.3.2010 whereas a thorough search in the Patwarkhana was made on 4.3.2010 but these documents were not found. In the absence of these original documents, it is well-nigh impossible to hold that the complainant had completed the requirement in supplying the necessary judgments etc. There is no explanation as to why the search was made on 4.3.2010 and the documents recovered later on when the case of the prosecution is that these two documents were already in the Patwarkhana with the accused. I find that there was no occasion for the accused to have made a demand. It is the settled precedent in C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779, the Supreme Court holds:
â18. In Suraj Mal Vs. State (Delhi Admn.) reported in [(1979) 4 SCC 725], this court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
19. The learned counsel for the CBI submitted that the onus of proof was upon the appellant to explain as to how he came into possession of the amount recovered from him during the trap. The argument of the learned counsel is obviously based on Section 20 of the Prevention of Corruption Act, 1988 which reads as under:
â20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under Section 7 of Section 11 or clause (a) or clause (b) of subsection (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be without consideration or for a consideration which he knows to be inadequate.(3) notwithstanding anything contained in sub-sections (1) (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.â
20. A three-Judge Bench in M. Narsinga Rao Vs. State of A.P. (2001) 1 SCC 691 while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed:
â24â¦â¦we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571.) The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: (SCC p.577, para 12)
â12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted âas motive or reward for doing or forbearing to do any official act. So the word âgratification need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like âgratification or any valuable thing. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word âgratification must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.â
21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification.
22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.
â4â¦â¦â¦It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4(1) under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.â (See V.D. Jhingan Vs. State of U.P. 1966 (3) SCR 736).
(Emphasis supplied)â (Pp.784-786)
12. The factual matrix of the case has not been established either for the demand or for the receipt of the illegal gratification, I find that the learned trial Court has not made any error in acquitting the accused. In these circumstances, there is no merit in this appeal which is accordingly dismissed. Bail bonds furnished by the respondent are discharged.