A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment of conviction and order of sentence dated 18-12-1997 passed by V Additional Sessions and Special Judge (CBI), Jabalpur in Special Case No. 152/96 convicting appellant under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (in short 'the Act') and sentencing him to suffer imprisonment as mentioned in the impugned judgment, this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred by the appellant.
2. In brief the case of prosecution is that 10-9-1995 appellant was serving on the post of Electrical Foreman at Nainpur Railway Station and complainant Farid Khan (hereinafter referred to as 'the complainant') was serving in South Eastern Railway, Howbagh Railway Station. Complainant was trying to get him transferred from Howbagh to Nainpur and in this regard he contacted appellant. However, appellant was making demand of illegal gratification of Rs. 300/- to forward the transfer application of the complainant. Since complainant was not desirous to give the said amount of bribe and was keen to get the appellant caught red handed, he submitted a complaint in CBI Office on 10-9-1995 which is Exh. P-1. On the basis of written complaint, FIR was registered and Om Prakash Parida, Inspector of CBI was entrusted to investigate the matter. Inspector Parida after making necessary queries from the complainant, made a scheme for the trap. The Investigating Officer summoned Kuldeep Rai Bhatiya and S.C. Sarin and in presence of these two witnesses certain queries were put to the complainant. On being satisfied that the complaint is prima facie correct, complainant was directed to produce the currency notes of Rs. 300/-. On submitting the currency notes of Rs. 300/-, their numbers were noted down and they were treated with phenolphthalein powder. A pre-trap demonstration of the change of colour of solution of sodium carbonate on coming into contact with phenolphthalein powder, was conducted in the office. A pre-trap Panchanama was also prepared.
3. The treated currency notes were kept in the pocket of the complainant and he was directed to hand over these treated currency notes to appellant only when he makes demand of bribe. Thereafter, the trap party including the complainant went to the office of appellant at Nainpur. The complainant and trap witness S.C. Sarin were sent to the office of appellant where appellant asked complainant whether he has brought the money. Thereafter complainant took out the treated currency notes of Rs. 300/- and handed over the same to the appellant. Thereafter complainant gave signal to the members of the trap party as a result of which they rushed inside the office of appellant and caught hold of his hands from the wrist.
4. Thereafter, the solution of sodium carbonate was prepared and the right hand of appellant was dipped in the said solution. On dipping the fingers of his right hand the colour of the solution turned to pink which was collected in a separate sealed bottle. On being informed by trap witness S.C. Sarin that the bribe money has been kept by appellant in the pocket of his shirt, another trap witness Kuldeep Rai Bhatiya took out the treated currency notes from the pocket of appellant and their numbers were tallied with pre-trap Panchanama which were found to be the same. The pocket of the shirt of appellant was also subjected to phenolphthalein powder test which was found to be positive. The wash of the shirt was also collected in a separate sealed bottle and was sent for chemical examination.
5. After the investigation was over and requisite sanction was obtained to launch the prosecution against the appellant, a charge-sheet was submitted before the learned Special Judge who framed charges punishable under Section 7, 13(1)(d) read with Section 13(2) of the Act which appellant denied and requested for the trial.
6. In order to prove the charges, prosecution examined as many as 5 witnesses and placed Exhs. P-1 to P-14 the documents on record.
7. Apart from the defence that appellant has been falsely implicated, a specific defence which has been put forth during the cross-examination of the prosecution witnesses as well as in the explanation offered by appellant in his statement recorded under Section 313, Cr.PC is that indeed wife of the appellant is LIC agent and the complainant requested her to provide 'monthly salary saving scheme' policy on 28-8-1995, on which, she told complainant that he is required to deposit amount of two instalments total Rs. 378/- as the monthly is Rs. 189/-. But, complainant was having only Rs. 78/- with him which he paid to Smt. Vidisha Patra wife of appellant. Since complainant was required to pay balance amount of the policy, i.e., Rs. 300/-, on the date of the trap, the said amount of Rs. 300/- was given by complainant with an understanding that he is making payment of the remaining part of the policy amount. In support of his defence appellant examined defence witnesses including his wife Vidisha Patra (D.W. 3) who is LIC agent as well as Dilip Varade (D.W. 6) who at the relevant point of time was serving on the post of Development Officer in LIC. The receipt of the premium policy of Rs. 378/- (Exh. D-2) was also filed and proved.
8. Further defence of appellant is that there was no motive on his part to make any demand of bribe because no application in the month of April, 1995 to get complainant transferred to Nainpur was submitted by him to the appellant. His earlier applications which he submitted in the years 1993 and 1994 were already disposed of and the request of his transfer to Nainpur was already rejected.
9. The learned Special Judge on the basis of evidence placed on record came to hold that the prosecution was proved its case and the charges under Sections 7, 13(1)(d) read with Section 13(2) of the Act are proved and eventually convicted the appellant and passed the sentence as mentioned in the impugned judgment.
10. In this manner the present appeal has been filed by appellant assailing his judgment of conviction and order of sentence.
11. In his usual vehemence Shri Som Mishra, learned Counsel for appellant submitted that the entire case of prosecution is nothing but a concoction because there was no motive on the part of appellant to make any demand of bribe since no application of complainant was submitted to him in the month of April, 1995 to get him transferred from Howbagh to Nainpur. Thus, the contention of learned Counsel is that the foundation stone which has been laid by complainant in his complaint (Exh. P-1) that he submitted application in the month of April, 1995 to appellant with a request to forward the same to the Competent Authority so that he may be transferred from Howbagh to Nainpur has been somersaulted. It has been further contended that in order to take out grain from the chaff, the said application should have been seized by the Investigating Agency, but no such application has ever been seized by the Investigating Agency. Apart from this by inviting our attention to the statement of Investigating Officer O.P. Parida (P.W. 5), it has been contended that photocopy of the said application was shown by complainant to this Officer, but, he did not seize the said document, and therefore, it is only in the air that complainant submitted any application in the month of April, 1995 to get him transferred from Howbagh to Nainpur. By inviting our attention to document (Exh. D-4), dated 31-8-1995, it has been argued by learned Counsel that earlier applications were already disposed of and rejected and the prayer to transfer him was not accepted. Hence, it has been submitted by learned Counsel that there was no motive for the appellant to make any demand of bribe. In this context, he has placed reliance on the decision of Supreme Court in Ganga Kumar Srivastava v. State of Bihar : (2005) 6 SCC 211.
12. By inviting our attention to the testimony of complainant Para 35, it has been forcefully argued by learned Counsel for appellant that if the admission of complainant is considered in proper perspective, it would reveal that the defence which the appellant has taken is quite probable that amount of Rs. 300/- was given with an assurance that the same is being paid towards the balance amount of the LIC premium. Learned Counsel further submits that the probable defence which has been put forth by appellant to complainant has also been accepted by trap witness Kuldeep Rai Bhatiya (P.W. 2) who has categorically admitted in Para 3 of his cross-examination that when the appellant was caught with Rs. 300/-, the first version of his was that he has not taken any bribe but has obtained the amount of LIC premium.
13. Learned Counsel has further submitted that even trap cannot be said to be a successful trap because complainant himself has admitted that when the hands of appellant were caught, before directing him to hand over the treated currency notes, his hands were not subjected to phenolphthalein powder test. The contention of learned Counsel is that in order to take out the grain from the chaff it was necessary on the part of Investigating Agency to first conduct phenolphthalein powder test on the fingers of the hands of the complainant and thereafter he should have been directed to take out the treated currency notes. Since this has not been done, according to learned Counsel it cannot be said that appellant made any demand of bribe and accepted the same.
14. By inviting our attention on two decisions of Supreme Court in Punjabrao v. State of Maharashtra : AIR 2002 SC 486 as well as V. Venkata Subbarao v. State represented by Inspector of Police A.P. AIR 2007 SC 489, it has been contended by learned Counsel that if the defence is found to be probable then due weightage should be given to it and the same should not be compared with that of prosecution where the prosecution is obliged to prove the case beyond reasonable doubt. Learned Counsel has also put forth that if the demand of bribe is not proved mere proof of receipt of money by accused, in absence of proof of demand and acceptance of money as illegal gratification, would not be sufficient to establish guilt of accused and in this context he has placed reliance on two decisions of Supreme Court they are T. Subramanian v. State of T.N. (2006) 1 SCC 401 and V. Venkata Subbarao (supra). On these premised submissions, it has been argued by learned Counsel for appellant that by setting aside the impugned judgment, this appeal be allowed and appellant be acquitted from all the charges.
15. Combating the aforesaid submissions of learned Counsel for appellant it has been argued by learned Counsel for respondent that there is direct evidence of complainant which is corroborated by the testimony of trap witnesses, Kuldeep Rai Bhatiya (P.W. 2) and S.C. Sarin (P.W. 4) and if that would be the position, even if there is some irregularity or illegality committed in conducting phenolphthalein powder test, since it is only a corroborative piece of evidence, much credence should not be given to it. In support of his contention, learned Counsel for respondent has placed reliance on two decisions of Supreme Court they are B. Noha v. State of Kerala and Anr. 2006 (4) Crimes 326 (SC) and State of Madhya Pradesh v. Shambhu Dayal Nagar 2006 (4) Crimes 362 (SC). Further it has been contended by learned Counsel for CBI that procedural irregularity should not come in the way when there is direct evidence. It has also been propounded by him that no such suggestions were put to complainant that the amount which was accepted by appellant was towards the amount of premium of LIC. He has further argued that the LIC receipt (Exh. D-2) was not confronted to the complainant and, therefore, the defence which has been taken by the complainant cannot be said to be a probable defence. Learned Counsel has further argued that learned Trial Court assigned cogent reasons holding the charges to be proved and if that is the position, for no rhyme or reason, the decision of learned Trial Court should be set aside and hence it has been contended that this appeal being bereft of any substance the same be dismissed.
16. Having heard learned Counsel for the parties, we are of the considered view that his appeal deserves to be allowed.
17. The appellant has been prosecuted on the basis of written complainant (Exh. P-1) lodged by complainant to Superintendent of Police, CBI, Jabalpur on 10-9-1995. The agony of complainant in his complaint (Exh. P-1) is that in December, 1993, October, 1994 he submitted application to get him transferred from Howbagh to Nainpur. Another application in the month of April, 1995 was also submitted in that regard to appellant but when on 9-9-1995 he met to appellant in his office he told that in order to forward his transfer application of April, 1995 and to get him transferred immediately, complainant should give bribe of Rs. 300/-. It has also been stated in the complaint that in case complainant fails to give Rs. 300/- he will not be transferred to Nainpur. According to complaint of complainant, 11-9-1995 at 11.00 a.m. the date and time has been fixed for the transaction of bribe. On the basis of this complaint, the impugned trap was arranged and conducted.
18. Complainant when appeared in Court as P.W. 1, has stated that he was trying to get him transferred from Howbagh to Nainpur and in this regard he met appellant who made demand of bribe of Rs. 300/- for forwarding his application of transfer and to get the matter expedited. Thereafter he made complaint to CBI Officers at Jabalpur and a trap was arranged. He has further stated that two witnesses, namely, Kuldeep Rai Bhatiya and S.C. Sarin were called and before them a pre-demonstration of the change of colour of sodium carbonate on coming into contact with phenolphthalein powder was made. According to this witness on 11-9-1995 in between 11 to 11.30 a.m. he along with the members of the trap party reached at Nainpur Railway Station and the vehicle was stationed outside the Railway Station. This witness along with trap witness S.C. Sarin went inside the office of the appellant where he was sitting. After having normal courtesy, appellant asked whether he has brought Rs. 300/-, in reply to it complainant answered in affirmative. Thereafter appellant asked to give Rs. 300/- to him as a result of which he took out the treated currency notes from his right hand from the pocket of the shirt and handed over the same to appellant which he received by his right hand. Thereafter complainant also requested to count the currency notes and accordingly appellant after counting the same kept in the pocket of his shirt. The complainant thereafter came out and waived his hand which was a signal to the members of the trap party that the transaction of bribe has taken place. Immediately the members of the trap party entered inside the office and the Investigating Officer O.P. Parida asked who is Mr. Patra, and complainant denoted appellant to be Mr. Patra. Thereafter, Investigating Officer directed Dixit to caught hold the appellant as a result of which Mr. Dixit caught hold his hands from wrist. According to this witness he told Investigating Officer that appellant has kept the bribe amount in the pocket of his shirt as a result of which Investigating Officer directed Panch witness to take out the treated currency notes and accordingly they were taken out by Mr. Bhatiya. The numbers of the currency notes were tallied with pre-trap Panchanama and they were found to be the same.
19. According to the evidence of complainant thereafter the hands of appellant were subjected to phenolphthalein powder test and on dipping the fingers of his hand the colour of the sodium carbonate turned to pink. The tainted handwash of appellant was kept in a separate sealed bottle. The hands of complainant were also subjected to phenolphthalein powder test which was found to be positive and his handwash was also collected in separate sealed bottle. The shirt which appellant was wearing was taken off and the pocket of his shirt was also subjected to phenolphthalein powder test which was also found to be positive and the wash of the pocket of the shirt was also collected in a separate sealed bottle. In cross-examination Para 7 this witness has specifically admitted that since the year 1990 he is making complaints against appellant because appellant happened to harass him. In Para 8 of his cross-examination he has further admitted that on the basis of a complaint made by appellant against him, department gave a charge-sheet to him.
20. In Para 12 of the cross-examination this witness has further admitted that the actual and exact date of the month of April, 1995 of giving application for his transfer to appellant he did not remember. Again in Para 21 of his cross-examination, this witness is admitting that he is not having copy of his transfer application which was submitted in April, 1995. According to this witness the said application was written by Head Clerk B.P. Tiwari on the direction of appellant. Further this witness has admitted that he can be transferred on the recommendation of DPO. In Para 30 of his cross-examination this witness has stated that the conversation which took place between him and appellant was in high tone so that other persons may also hear. According to him when he actually gave the money to appellant at that juncture panch witness Mr. Sarin, who was also made as shadow witness, was standing nearby him. Further this witness has admitted that while accepting the money, appellant did not hesitate at all, on the contrary very boldly he accepted the money. Further this witness has stated that appellant did not make any enquiry about the surveillance witness Mr. Sarin. In Para 34 of his cross-examination, this witness has admitted that appellant took out the treated currency notes from his pocket by his right hand. The suggestion put to him that Investigating Officer directed surveillance witness S.C. Sarin to take out the treated currency notes has been firmly denied by him. The Panchanama (Exh. P-3) was confronted to him and thereafter he has stated that the factum of taking out the treated currency notes from the pocket of the appellant by Mr. Sarin why has not been written in Exh. P-3 he cannot say. He has further stated that this fact was not asked to this witness by the Investigating Officer though he has admitted that after going through Panchanama (Exh. P-3) he signed the said document. Further he has stated that in the Panchanama why he has stated that the treated currency notes were taken out by trap witness Kuldeep Rai Bhatiya, he cannot say.
21. At this juncture, we would like to scan Para 35 of his testimony in which appellant has put his defence and confronted it to the complainant. In this paragraph, it has been admitted by complainant that appellant's wife is LIC agent. In the month of August, 1995 complainant took 'monthly salary saving policy' from his wife and the premium of the policy was Rs. 189/- per month. Further he has admitted that at the time of obtaining new policy, the amount of two premium has to be paid. Though the suggestion put to him that he gave only Rs. 78/- to the wife of appellant has been denied by him and has stated that the entire amount of premium Rs. 378/- was paid. The suggestion put to him has also been denied by this witness that he requested the wife of appellant that the balance amount of premium Rs. 300/- shall be paid by him on receiving the salary.
22. The other witness is Kuldeep Rai Bhatiya (P. W. 2) who is the trap witness. According to this witness he was standing nearby the door of the office of appellant to whom complainant asked whether his task of transfer has been done, on this appellant asked whether he has brought the money and thereafter complainant handed over Rs. 300/- to appellant which was received by him from his right hand and kept in the upper pocket of the shirt. Thereafter complainant waived his hand which was a signal to the members of the trap party that the transaction of illegal gratification has taken place. Thereafter this witness along with other witness entered inside the room of appellant and his hands were caught hold from the wrist. The shirt of the appellant was searched by shadow witness Mr. Sarin. This witness has also stated that phenolphthalein powder test was conducted on appellant which was found to be positive.
23. At this juncture, on marshalling the evidence of complainant and trap witness Kuldeep Rai Bhatiya (P. W. 2) we find that both the witnesses are saying that treated currency notes were taken out by shadow witness Mr. S.C. Sarin but, this is altogether contrary to recovery memo (Exh. P-3) in which it has been specifically mentioned that witness Kuldeep Rai Bhatiya had taken out the currency notes from the pocket of the appellant on being pointed out by shadow witness Mr. Sarin. To us, if panch witness Kuldeep Rai Bhatiya in fact was directed to take out the alleged bribe money from the pocket of appellant, such an important fact should have definitely been said by him. This material contradiction in the evidence creates a heavy doubt on the veracity of evidence of Kuldeep Rai Bhatiya (P.W. 2) that on being asked by complainant about his transfer, appellant responded that whether he has brought the money. If the trap in fact was successfully led certainly this should have been said by Kuldeep Rai Bhatiya that he took out the treated currency notes from the pocket of the appellant but specifically he is saying that shadow witness Mr. Sarin took out the alleged bribe money from the pocket of the appellant. According to us, this amounts to material contradiction and is also one of the turning point of the case.
24. If we marshal the evidence of complainant as well as trap witness Kuldeep Rai Bhatiya (P.W. 2) on the point of making demand of alleged bribe, we find that both of them have stated different version in this regard. According to the complainant, after entering in the office of the appellant he wished him and thereafter appellant asked whether he has brought Rs. 300/- and in its reply he answered in affirmative. Thereafter appellant asked to give the money and received by keeping it in the pocket of his shirt. It would be apposite to quote those lines of conversation which took place between appellant and complainant which reads thus:
eS vfHk;qDr dks ueLrs fd;k fQj vfHk;qDr eq>s dgk fd 300 :- yk;s rks eS dgk eS yk;k gwa A fQj vfHk;qDr us dgk eq>s ns nhft, fQj eSa nkfgus gkFk ls vius 'kVZ ds myVs tsc ls Vsi dk j[kk;k :i;k fudkydj vfHk;qDr v:.k dqekj ik=k dks fn;k ftls og nkfgus gkFk esa fy;k eSus muls dgk fxu yhft, rks os nksuks gkFkks ls fxus fQj vfHk- :i;ks dks 'kVZ ds ijh tsc esa j[kk A
[I wished accused thereafter accused asked me whether I have brought Rs. 300/- I replied I have brought. Thereafter accused asked to give it to me, thereafter I took out the money from the left pocket of my shirt which was kept for the purpose of trap and handed it over to Arun Kumar Patra, which was received by him from his right hand. I asked him to count thereafter he counted by both the hands. Thereafter accused kept the rupees (money) in the upper pocket of his shirt].
25. This witness is not at all saying that he ever put any question about his transfer, after entering inside the office of appellant. According to complainant, simply after he wished, appellant asked whether he has brought Rs. 300/- and this witness replied in affirmative and thereafter appellant directed him to give the money and complainant gave Rs. 300/- to appellant which he received and kept in his pocket. But the trap witness is saying something which has not been even stated by complainant. According to the trap witness Mr. Kuldeep Rai Bhatiya (P.W. 2) when complainant went inside the office of appellant at that juncture he was standing at the door and complainant put question to appellant whether his transfer work has been done, on this appellant asked whether he has brought the money thereafter complainant handed over Rs. 300/- to appellant which he received by his right hand and kept in the pocket of his shirt. Thus, according to us there is material discrepancy in the statement of these two important witnesses. From the statement of complainant, nowhere it is revealed that complainant put any question about his transfer and thereafter gave money of Rs. 300/- towards alleged bribe. However, according to Mr. Bhatiya complainant enquired about his transfer first and thereafter appellant made demand of money.
26. According to us, there is vast difference between the two set of evidence. From the testimony of complainant the smell of making demand of bribe is not at all being noticed because according to complainant on seeing him straightway appellant asked to give the money and complainant gave Rs. 300/- to the appellant. Nowhere complainant has said that first of all he enquired about his transfer and thereafter appellant asked to give the money, and therefore defence appears to be probable that demand of Rs. 300/- was made by appellant towards the payment of LIC premium. While from the testimony of Mr. Bhatiya one could gather that bribe was demanded by appellant because when complainant enquired about his transfer appellant made demand of money from him and thereafter complainant gave Rs. 300/-. Thus, we are of the view that since there is vast difference between the two set of evidence and there is material discrepancy in the evidence of complainant and trap witness Mr. Bhatiya, it cannot be said that charges are proved.
27. If we further X-ray the testimony of trap witness Kuldeep Rai Bhatiya (P.W. 2), it is revealed that in Para 3 of his cross-examination he has specifically admitted that when the amount of bribe Rs. 300/- was recovered from appellant immediately he stated that he has not taken any bribe but accepted the money of LIC premium. It would be condign to quote those material lines of Para 3, which has come in his cross-examination which reads thus:
;g lgh gS fd tc vfHk;qDr ds ikl ls 300@& :- cjken gqvk rks vfHk;qDr us dgk fd ?kwl ugh fy;k gS izhfe;e dk iSlk fy;k gS rc eSus dgk Fkk vkius esjs lkeus ?kwl ds iSls fy;s gSA
(It is correct that when Rs. 300/- was recovered from appellant at that time he stated that he has not taken any bribe but has accepted the money of premium. On this, I told that you have taken the bribe).
Thus, according to us, the first version of appellant, immediately after he was caught is that he did not accept any amount of bribe but has taken the amount towards LIC premium and therefore, according to us the defence cannot be said to be an afterthought defence.
28. So far as the evidence of shadow witness Sarin (P.W. 4) is concerned, he has also stated in Para 6 of his testimony that complainant asked about his transfer application on which appellant told that the relevant paper has been sent to Nagpur after forwarding. Thereafter appellant made demand of Rs. 300/- as a result of which complainant took out Rs. 300/- from his right hand and handed over to appellant. The appellant thereafter kept the money in the right pocket of his shirt. This shadow witness is stating altogether new story about the recovery of bribe money from appellant. Firstly he says that appellant took out the treated currency notes and later on he says that Investigating Officer Parida took out the money from the pocket of the appellant. Thus, according to us, how the transaction of alleged bribe money took place between appellant and complainant and what conversation took place between them at the time of handing over the money, has been stated materially different by complainant, shadow witness and the trap witnesses. Therefore, looking to the material discrepancy going to the root of matter in the statement of each witness, it is difficult to hold that what actually transpired between appellant and the complainant at the time of handing over the money.
29. On the point of recovery also the evidence of prosecution is self-contradictory. According to the Panchanama (Exh. P-3) the alleged bribe money was taken out by Panch witness Kuldeep Rai Bhatiya from the pocket of appellant, on the other hand complainant and trap witness Kuldeep Rai Bhatiya says that the same was taken out by shadow witness Sarin while Mr. Sarin says that appellant himself took out the money and thereafter says that Investigating Officer Parida took out the money. Hence, on the point that who took out the money from the pocket of the appellant there is material discrepancy and contradiction in the testimony of each witness. If we accept the evidence of shadow witness C.S. Sarin (P.W. 4) Para 6, it is revealed that appellant himself took out the money from his pocket and if that would be the position the entire case of prosecution is somersaulted because it was necessary on part of Investigating Agency to hold the phenolphthalein powder test on the hands of appellant before asking him to take the treated currency notes. If we accept the second version of shadow witness that Investigating Officer took out the money from the pocket of the appellant, again the case of prosecution becomes upside down for the simple reason that this fact has not been stated by Investigating Officer O.P. Parida (P.W. 5). Apart from this if Investigating Officer has taken out the treated currency notes from the pocket of the appellant, his hands should have also been subjected to phenolphthalein powder test before and after taking out the treated currency notes, but, the evidence of shadow witness S.C. Sarin is totally silent on this point.
30. Hence, for the above said reasons, according to us, the factum of making demand of bribe by appellant to get the transfer application of complainant forwarded to Higher Authorities is not at all proved. In order to hold appellant to be guilty of the charges under Section 13(1)(d) as well as under Section 7 of the Act, it should have been proved by firm evidence that appellant made any demand of bribe and accepted the same as bribe. As we have already held herein above that nowhere the complainant in his testimony has stated that on entering in the office of appellant, no question was put by him to appellant enquiring about his transfer, but straightway on seeing complainant, appellant asked whether he has brought Rs. 300/-. Thus the factum of making demand of bribe is not at all proved.
31. At this juncture, we would like to scan the defence of appellant and whether it is found to be probable. The law in this regard is now well settled that if the defence is found to be probable, due weight age should be given to it and it should not be compared with standard of proof with that of prosecution, because, the prosecution is obliged to prove its the case beyond all reasonable doubt. In this context we may fruitfully place reliance on two decisions of Supreme Court they are Punjabrao (supra) and V. Venkata Subbarao (supra).
32. The defence of appellant is that his wife Smt. Vidisha Patra (D. W. 3) is LIC agent and complainant on 28-9-1995 requested her to provide 'monthly salary saving scheme' policy. The complainant was required to make payment of two instalments of Rs. 189/- cumulatively, in total Rs. 378/- but, complainant was having only Rs. 78/- with him at that time, hence the rest of the amount of Rs. 300/- of LIC Policy was contributed by his wife to the Development Officer and complainant was told that receipt of Rs. 378/- would be given only when he will make the payment of balance amount of Rs. 300/-. Indeed, complainant gave Rs. 300/- to appellant on the date of trap with an understanding that the same is being paid towards the balance amount of the premium and this money of Rs. 300/- was accepted by appellant with an understanding that the same is towards the payment of balance amount of policy which complainant has taken from his wife few days earlier to the incident.
33. In order to prove the probable defence, the same was confronted to complainant during his cross-examination in Para 35 in which the complainant has admitted the factum of taking LIC Policy from the wife of the appellant in August, 1995 and further admitted that the premium was Rs. 189/- per month. He has also admitted this fact that at the time of taking the policy the amount equivalent to two premium was required to be paid. The suggestion was also put to complainant that only Rs. 78/- was given to the wife of appellant by complainant and assurance was given that balance amount of Rs. 300/- shall be paid on 11th which is the date on which the salary is paid. At this juncture we should keep in mind that the date of trap is also 11-9-1995. Similarly, trap witness Kuldeep Rai Bhatiya has also admitted in Para 3 of his cross-examination that when the amount of Rs. 300/- was recovered from appellant the immediate version of his was that he has not accepted any bribe but has taken the amount of policy. Thus, the probable defence which appellant has taken has been proved up to certain extent from the evidence of prosecution witnesses itself.
34. At this juncture only, when we are considering the probable defence taken by appellant, we would like to consider the evidence of complainant Farid Khan. Paras 30 and 31 wherein the complainant has stated that during handing over the money, the conversation which was being taken place between him and appellant was in high tone. In Para 31, complainant has admitted that when appellant made demand of money and he handed over the same to him, the appellant was not having any mark of hesitation on his face while accepting the money on the contrary he was accepting the same very boldly. According to us since appellant was accepting the money with an understanding that the amount is being paid to him for the balance amount of LIC premium, therefore, there was no mark of any hesitation on his face and he was boldly accepting the money.
35. The probable defence which has been taken by appellant is also proved by the evidence of Vidisha Patra who was examined as D.W. 3 and who is the wife of the appellant. According to her on July, 21st 1995 through Development Officer Dilip Varade she took LIC Agency. On 28-9-1995 (14 days earlier to the date of trap as trap was held on 11-9-1995) in between 11 to 11.30 a.m., when she was at her house at that time Development Officer was also present. At that juncture complainant came and requested her to provide the 'monthly salary saving' policy to him, thereafter, she explained him about the details of the policy and told that policy of Rs. 25,000/- will be issued in his favour. The complainant was directed to deposit two instalments in cash if he wants to avail the facility of the said policy. It was also pacified to him that thereafter the monthly instalment would be deducted from his salary. This witness has further stated that monthly instalment would be of Rs. 189/-. In very specific words this witness has stated that complainant put his inability to pay cash amount of two instalments and told that at the moment he can only deposit Rs. 78/- and the balance amount of Rs. 300/- could be paid by him only on 11th which is the date of the payment of salary. According to this witness she accepted the offer of complainant and did the requisite to issue the Insurance Policy to him. Further, she has specifically stated that she contributed from her own Rs. 300/- towards the balance of two instalments of complainant, but specifically told him that on the date of disbursement of salary the said amount be paid to her. Thus, in total she deposited the entire-amount of Rs. 378/- of two instalments to the Development Officer who was present in her house. Thereafter, Development Officer gave receipt of Rs. 378/- to her and the original receipt has been brought by her in Court and which was exhibited by the Trial Court as Exh. D-2. According to this witness the balance amount of Rs. 300/- has not yet been paid to her by complainant. This witness was cross-examined by the Public Prosecutor but nothing crept out from her testimony in order to disbelieve her statement.
36. At this juncture, we have also gone through the LIC receipt (Exh. D-2), which is dated 28-8-1995 and is in the name of complainant mentioning the date of policy 28-8-1995. The premium Rs. 189/- per month has been mentioned and the receipt of Rs. 378/- has been issued. Thus, the documentary evidence also corroborates the probable defence of appellant.
37. The presence of Development Officer at the house of appellant's wife has also been corroborated by the evidence of Development Officer Dilip Varade (D.W. 6) who has categorically stated that complainant on 28-8-1995 came to the house of Vidisha Patra (D.W. 3) and he enquired from her that in order to take policy of Rs. 25,000/- what would be the premium. On this, Vidisha Patra explained about the policy and told that Rs. 189/- per month premium would come and in order to start the policy first of all amount equivalent to two premium is required to be deposited. However, complainant told that at the moment he is having only Rs. 78/- and the balance amount of Rs. 300/- would be paid by him when he will get the salary. Thereafter Vidisha Patra (D.W. 3) contributed a sum of Rs. 300/- from her own and in total paid Rs. 378/- to him which was the entire payment of first two instalments of the policy. Thereafter, after two days he gave receipt of premium to Vidisha Patra. There is no cross-examination on this witness by the prosecution that he was not present when the conversation of taking policy took place between complainant and Vidisha Patra (D.W. 2) and therefore, his presence at that juncture is established and proved. Thus, according to us, the probable defence taken by appellant is having due weightage that the amount of Rs. 300/- which was given by complainant to him on the date of trap was in fact the balance amount of premium which was required to be paid by the complainant to appellant's wife and this has been so admitted by trap witness Kuldeep Rai Bhatiya (D.W. 2) in Para 3 of his cross-examination that when appellant was caught he was saying that he has not taken any bribe, but has taken the amount of premium.
38. We do not find any merit in the contention of learned Counsel for respondent that no suggestion has been put to complainant during his cross-examination that Rs. 300/- were received by appellant towards premium and similarly receipt (Exh. D-2) was not confronted to him. So far as not putting the suggestion to complainant is concerned, suffice it to say that if Para 35 of the cross-examination of complainant and Para 3 of cross-examination of shadow witness Kuldeep Rai Bhatiya (P.W. 2) is taken into consideration and both the paras are kept in juxtaposition to each other it would reveal that indeed probable defence was put-forth to both these witnesses. So far as the confrontation of the receipt (Exh. D-2) is concerned, according to us, since appellant was not having any domain over the said receipt and it was in possession of Vidisha Patra, though she may be his wife, therefore, legally it cannot be said that first of all he should have taken the receipt in his possession and then during the course of cross-examination of the complainant it should have been confronted. At the cost of repetition, we would not like to hesitate to mention it here again that complainant himself has admitted that he took the policy from the wife of complainant on 28-8-1995 and therefore, if in these circumstances, if Exh. D-2 was not confronted to complainant it would not strengthen the case of prosecution nor weakens the probable defence of appellant. The second reason is that there is nothing on record as to why we should disbelieve the testimony of Development Officer Dilip Varade (D.W. 6) who has stated that complainant on 28-8-1995 came to the house of Vidisha Patra and requested her to issue policy and he (complainant) only gave Rs. 78/-by making request that balance amount of Rs. 300/- would be given on the date of salary and thereafter Vidisha Patra by contributing Rs. 300/- of her own paid Rs. 378/- to this witness, and thus according to us, the probable defence has been emphatically proved by the appellant. We should also not forget that Dilip Varade (D.W. 6) is totally an independent witness.
39. The Supreme Court in Bal Krishan Sayal v. Slate of Punjab : AIR 1987 SC 689, has held that if the bribe amount alleged to have been offered near about equal to amount that complainant would be required to pay legally, the offence cannot be said to be proved. If the ratio decidendi olBal Krishna Sayal (supra) is tested on the touchstone and anvil of the present factual scenario, it would reveal that since according to the testimony of independent witness Dilip Varade (D.W. 6) as well as from the evidence of Vidisha Patra (D.W. 3), Rs. 300/- was required to be paid by complainant towards the balance amount of legal fees of the policy, therefore, it cannot be inferred that the amount of Rs. 300/- which was demanded by appellant or which was given by the complainant, was towards the bribe.
40. The Supreme Court in the case of V. Venkata Subbarao (supra), has categorically held that in order to prove the charges under Sections 7 and 13(1)(d) of the Act, it is obligatory on part of prosecution to prove that accused made any demand of bribe and the statutory presumption under Section 20 of the Act that accused has accepted the money towards bribe cannot be accepted unless
and until it is proved that for some motive or reward the demand of bribe was made and the demand of bribe is proved. The Supreme Court in T. Subramanian v. State of T.N. (2006) 1 SCC 401, has categorically held that if accused offers reasonable and probable explanation based on evidence that the money was accepted by him other than as an illegal gratification, accused would be entitled to acquittal and mere proof of receipt of money by accused in absence of proof of demand and acceptance of money as illegal gratification would not be sufficient to establish the guilt of the accused.
41. In the present case, the motive part is also not proved. If we go through the complaint (Exh. P-1) of the complainant dated 20-9-1995, which is the foundation stone of the case as well as his evidence in this regard, we find that specifically the stand of complainant is that he (complainant) gave an application of his transfer in April, 1995 and requested him to forward the same. But, no such application has been seized by the Investigating Officer. At this juncture, we would like to scan the testimony of Investigating Officer O.P. Parida (P. W. 5) Para 17 in which he has stated that on enquiry from complainant whether he is having any photocopy of his transfer application, he showed a photocopy to him, but, he did not seize the photocopy of that application, because, at that juncture he thought that during the investigation, if it would be necessary, the same will be seized. Indeed, no original application of April, 1995 has been seized by the Investigating Officer. If the original application of April, 1995 of transfer was not found by the Investigating Officer in the office, according to us, it was incumbent upon the part of Investigating Officer to seize the photocopy of it which was being possessed by complainant. Hence, when there is no document on record in order to prove that complainant ever gave any transfer application to the appellant, therefore, this defence of appellant is also found to be probable that indeed no application in April, 1995 was given by the complainant to get him transferred. Hence, when there is no application of April, 1995 of complainant requesting to transfer him is on record, according to us, there was no motive on the part of appellant to m ake any demand of bribe. In this context, we may also profitably place reliance on the decision of Supreme Court Ganga Kumar Srivastava (supra).
42. So far as his earlier applications of transfer which he submitted during the years 1993 and 1994 are concerned, they were disposed of and the request of his transfer was rejected. In this context, we may place reliance on Exh. D-4, dated 31-8-1995 which is a letter addressed to complainant intimating that his case was forwarded by Divisional Secretary to transfer him from Howbagh to Nainpur but prayer cannot be accepted because at that moment there was no vacancy at Nainpur. This document (Exh. D-4) has been proved by Neetu Thakur (D.W. 5) who was serving on the post of Fitter Grade III in the Railway and who has stated that on 31-8-1995 Dak Book (Exh. D-3) was given to him by appellant and he was told that information be given to complainant that there is no vacancy in Nainpur and therefore he cannot be transferred. This witness has stated that he told complainant that his prayer to transfer him at Nainpur has not been accepted. When this letter was confronted to this witness the same was found inside the envelope and the enclosure is Exh. D/4-A. In the document (Exh. D/4-A) also the same fact has been mentioned. Thus, the prayer which was made by complainant through his application during the years 1993 and 1994 to get him transferred to Nainpur was already rejected prior to the date of trap and the application of transfer alleged to have been given by complainant in the month of April, 1995 to appellant is not on record and therefore according to us since no application of transfer of complainant was pending, therefore, there was no occasion for appellant to make any demand of bribe. In absence of the application of April, 1995 or its copy, the bald statement of complainant that he was requesting appellant to get him transferred cannot be accepted. Thus, in the present case, the motive part is also not proved.
43. The decision of Shambhu Dayal Nagar (supra), placed reliance by learned Counsel for respondent is not applicable in the present case because in that case these, was no material to implicate the accused on account of previous enmity. However, in the present case in Para 7 it has been admitted by complainant that he was making complaints against appellant since 1990 because appellant was harassing him. Further he has admitted that the department has charge-sheeted him on the basis of complaint made by appellant against him. The decision of B. Noha (supra) is also not applicable in the present facts and circumstances of the case because in that case there was ample evidence that voluntarily and with full conscious accused of that case accepted the money of bribe and the defence plea that forcibly the same was thrusted in the pocket of the appellant was not accepted. In the present case the money Rs. 300/- was accepted by the appellant with an understanding that the same is for the payment of the policy which has been taken by the complainant from his wife.
44. For the reasons stated herein above, we are of the view that the learned Trial Court erred in convicting the appellant for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act. According to us, these charges are not at all proved. This appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by the learned Special Judge is hereby set aside and the appellant is acquitted from all the charges. The appellant is on bail, his bail bonds are discharged. The amount of fine, if deposited, be refunded to him.