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2026:CGHC:25610

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

The date when

the judgment is

reserved

The date when

the judgment is

pronounced

The date when the

judgment is uploaded on

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Operative Full

25.04.2026 23.06.2026. -- 23.06.2026

CRA No. 1423 of 2017

1 - Anil Markende S/o Shri Sadaram Markande, aged about 33 years,

Occupation Assistant Director, Education, District Bemetara and additional

charge of Block Education Officer, Nawagarh, District Durg (C.G.).

2 - Ramesh Kumar Chouhan, Clerk (Original Post Shikshakarmi), Office of

Block Education Officer, Nawagarh, District Durg (C.G.)

... Appellants

Versus

State of Chhattisgarh, through Police Station Anti Corruption Bureau, Raipur,

District Raipur (C.G.)

... Respondent

For Appellants : Ms. Sharmila Singhai, Sr. Advocate along with

Mr. Shashwat Rai, Advocate.

For Respondent/State: Mr. Jitendra Shrivastava, G.A.

Hon'ble Smt. Justice Rajani Dubey

C.A.V. Judgement

2

1. This appeal has arisen out of the impugned judgment of conviction

and order of sentence dated 08.09.2017 passed by the learned Special

Judge (Prevention of Corruption Act) Bemetara, District-Bemetara (C.G.) in

Special Case No. 09/2013. The trial court has convicted and sentenced the

appellants as under :-

Conviction Sentence

Under Section 7 of

the Prevention of

Corruption Act,

1988.

R.I. for 03 years and fine

amount of Rs. 1,000/- and

in default of payment of

fine, to undergo additional

R.I. for 03 months to each

appellants.

Under Section 13(1)

(D) read with

Section 13(2) of

Prevention of

Corruption Act,

1988.

R.I. for 03 years and fine

amount of Rs. 1,000/- and

in default of payment of fine

to undergo additional R.I.

for 03 months to each of

the appellants.

(All the substantive sentences are directed to run concurrently.)

2.The prosecution case as unfolded from the impugned judgment and

records is that the complainant, Shyam Kumar Tiwari, approached the

Superintendent of Police, Anti-Corruption Bureau (ACB), alleging that

his wife, employed as a Shiksha Karmi (Class-III) “Education Worker” at

Government Primary School, Amlideeha, Block Nawagarh, District

Durg, had her salary withheld for six months by the Block Education

Officer (BEO). To resolve the matter, the complainant contacted

appellant No. 2-Ramesh Kumar Chouhan, who allegedly demanded an

illegal gratification of Rs. 5,000 for facilitating the release of the withheld

salary. The demand was purportedly made on behalf of appellant No.1-

Anil Markende, the Block Education Officer. Acting on the complaint,

the ACB Inspector, Lochan Pandey (PW-12), instructed the complainant

to record the conversation with the appellants using a tape recorder.

3

The complainant recorded the conversation and informed the ACB that

the appellants had called him on 12.10.2010 to collect the bribe

amount. On 12.10.2010, the ACB team conducted a trap at the office of

the BEO. After the complainant handed over Rs. 5,000, Appellant No. 1

was asked to wash his hands in a Sodium Carbonate solution, which

changed color, indicating the presence of the tainted currency.

3.During the subsequent course of investigation, relevant evidence,

including the bribe money was recovered from the left pocket of the

appellant No. 1’s pant. The trap team prepared a Panchnama (Ex.

P/13) documenting the recovery. The complainant’s written complaints

were marked as Ex. P/03 and Ex. P/05, and the transcriptions of the

recorded conversations were marked as Ex. P/06 and Ex. P/11.

4.After completion of the usual investigation, on the basis of the material

contained in the charge sheet, learned trial Court framed charges

against the accused/appellants for the offence punishable under

Section 7, Section 13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act, 1988, establishing that the accused, in his official

capacity, demanded and accepted a bribe.

5.To substantiate its case, the prosecution has examined as many as 12

witnesses. Statement of the accused/appellants were also recorded

under Section 313 of Cr.P.C. in which they denied all the charges

leveled against them and pleaded their innocence and false implication

in the case. However, in their defence, the appellants have adduced no

witness.

4

6.Learned trial Court after appreciating the oral and documentary on

record, convicted the appellants and sentenced him as mentioned in

the opening paragraph of this judgment. Hence, the present appeal

filed by the appellants.

7.Assailing the correctness and validity of the impugned judgment,

learned counsel for the appellants submits that the impugned judgment

dated 08.09.2017 is perverse, contrary to law, facts and circumstances

of the case, therefore, liable to be set aside. Learned trial Court

completely failed to appreciate that the first complaint was made by the

complainant on 04.10.2010 whereas the second complaint was

submitted on 11.10.2010 wherein he has not mentioned that he has

earlier made one complaint on 04.10.2010 and there is no allegation

made against the appellants for demand of illegal gratification. Learned

trial Court further completely failed to appreciate that on 08.10.2010 the

wife of the complainant Smt. Alka Tiwari made a complaint in which

also it was not mentioned that earlier her husband made a complaint on

04.10.2010. In such circumstances, the prosecution has completely

failed to prove its case beyond reasonable doubt. Learned trial Court

did not appreciate this fact that the evidence of Shyam Kumar Tiwari

(PW-03) in which in examination-in-chief he has specifically stated that

he had given letter to the appellant No. 1 who told him to meet with the

appellant No. 2, thereafter he met with the appellant No. 2, but this fact

has neither narrated in the complaint dated 04.10.2010 nor statement

under Section 161 of the CrPC. He has further stated in his

examination-in-chief that he has received the cheque of Rs. 39,158/- on

05.10.2010, therefore, no question for demand of illegal gratification

5

arises. The prosecution sanction is also against the settled principles of

law. Learned trial Court has completely overlooked the fact that the

prosecution has neither produced any FSL report nor examined any

witness to prove the voice of the appellants which was recorded by the

prosecution for proving the demand of illegal gratification. From perusal

of Ex. P/02, it is clear that while making a report for demand of illegal

gratification against the appellants, the wife of the complainant has not

made any allegation against the present appellants that who has

demanded the illegal gratification from her for releasing the salary.

Learned trial Court has gravely erred in punishing the appellant No. 2

because Shyam Kumar Tiwari (PW-03) has specifically stated that the

cheque of Rs. 39,158/- was given to him on 05.10.2010 by the

appellant No. 2 without taking any money, therefore, it is palpably false

that the appellant No. 1 demanded illegal gratification through appellant

No. 2. It is clear from the second complaint dated 11.10.10 that the

complainant has not mentioned that on 05.10.2010 he met with the

appellant No. 2 for receiving the cheque. Therefore, it is clear that the

complainant has not filed the complaint with clean hands. The

prosecution has completely failed to prove its case beyond reasonable

doubt as no independent witness has been examined to prove the

demand which is sine qua non for punishing the accused under the

Prevention of Corruption Act, 1988. The complainant Shyam Kumar

Tiwari (PW-03) in his cross-examination has specifically stated that till

receiving the cheque of Rs. 39,158/- there was no demand of illegal

gratification. Therefore, the conviction is illegal and deserves to be set

aside. PW-03 Shyam Kumar Tiwari has specifically stated that the

prosecution has recorded his statement under Section 161 CrPC on

6

11.10.2010, whereas the trap proceeding was conducted on

12.10.2010. In such circumstances, the prosecution case itself creates

suspicion and becomes doubtful. There is a major contradiction

between the court statement and the police statement of the Panch

witnesses who have not supported the case of the prosecution and

declared hostile. PW-11 U.K. Chandranvanshi Investigating Officer has

clearly stated that he has not obtained any expert’s opinion regarding

the voice of the appellants recorded in the tape recorder for demand of

illegal gratification. Therefore, the impugned judgment of conviction and

order of sentence is liable to be set aside, and the appellants deserves

to be acquitted of all charges.

8.Reliance has been placed on the decisions of the Hon'ble Supreme

Court in the matters of P. Somaraju v. State of Andhra Pradesh

reported in 2025 SCC OnLine SC 2291, State of Lokayuktha Police,

Davanagere [State By Lokayuktha Police] v. C B Nagaraj reported

in 2025 SCC OnLine SC 1175, on the decision of Hon’ble High Court of

Delhi in the matter of Romesh Sharma v. The State delivered on

29.01.2026 reported in CrL. Rev.P. 646/2004, on the decision of

Hon’ble High Court of Delhi in the matter of Ashish Kumar Dubey v.

State Thr. C.B.I. delivered on 04.04.2014 and in this Court’s decision in

the matter of Arun Kumar Vishwakarma v. State of Chhattisgarh

reported in CRA No. 89 of 2008.

9.Per contra, learned State counsel strongly opposed the arguments of

the learned counsel for the appellants and by supporting the

impugned judgment submits that learned trial Court minutely

7

appreciated the oral and documentary evidence. So, learned trial

Court rightly convicted the appellants. Hence, this appeal is well

merited and no interference is called for.

10.Reliance has been placed on the decision of the Hon'ble Supreme

Court in the matter of A. Karunanithi v. The State Represented by

Inspector of Police delivered on 12.08.2025 delivered in Criminal

Appeal arising out of SLP (Crl.) No. 9964 of 2019 and in this Court’s

decision in the matter of State of Chhattisgarh v. Tobius Xaxa

reported in ACQA No. 260 of 2019 delivered on 16.02.2026.

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

available on record including the impugned judgment with utmost

circumspection.

12.It is clear from record of learned trial Court that it framed charges

against the accused/appellants under Sections 7, 13(1)(d) read with

Section 13 (2) of Prevention of Corruption Act, 1988 and after

appreciation of oral and documentary evidence the learned trial Court

convicted the accused/appellants for the said offence.

13.It is not disputed that at relevant time, the appellant No. 1 Anil

Markande was posted as an Assistant Director, Education, District

Bemetara whereas the appellant No. 2 was posted as a Clerk (Original

Post Shikshakarmi), Office of Block Education Officer, Nawagarh, then

District Durg (C.G.) i.e., both the accused were public servants.

14.PW-03 Shyam Kumar Tiwari, the complainant, has deposed that his

8

wife, Smt. Alka Tiwari, who is serving as Shikshakarmi Grade-III, was

deprived of her salary for the period from 26.08.2009 to February 2010,

as the same was withheld during the said period. He further deposed

that, in connection with the release of his wife's withheld salary, he

visited the office of the Block Education Officer, Navagarh, and met the

accused persons. The complainant further deposed that, upon meeting

the accused, Ramesh Chauhan, he was informed that an amount of Rs.

39,158/- had been sanctioned towards his wife's salary and that

payment would be required for securing its release. He stated that he

expressed his inability to pay on account of his poor financial condition.

He further testified that, as the other accused Anil Markande was not

present in the office on that day, he requested Ramesh Chauhan to

provide Anil Markande's contact number so that he could speak with

him directly. Thereafter, Ramesh Chauhan demanded a sum of Rs.

5,000/- as illegal gratification and represented that the said amount was

required to be paid to Anil Markande for release of the salary amount.

In paragraph 4 of his deposition, the complainant stated that he spoke

with the accused, Ramesh Chauhan, on 05.10.2010, who informed him

that a cheque had already been prepared in the name of his wife, Smt.

Alka Tiwari. He further stated that he had met the accused on earlier

occasions as well, during which the accused, Ramesh Chauhan, had

demanded illegal gratification from him. The complainant further

testified that when he informed his wife about the said demand, she

refused to pay any amount, stating that it was her hard-earned money.

He further deposed that, prior to receiving the cheque, he had lodged a

written complaint before the Anti-Corruption Bureau on 04.10.2010 vide

Ex. P/03 in which he admitted his signatures on A to A part. In

9

paragraph 05 of his examination-in-chief, he stated that on 04.10.2010

itself, he was provided with a digital voice recorder fitted with a new

battery, and the method of operating and switching it on and off was

explained to him. As per the preliminary proceedings, Ex. P/04, he

recorded the entire conversation held between himself and the

accused, Ramesh Chauhan, on 05.10.2010. Thereafter, the

complainant deposed that on the evening of 06.10.2010, he visited the

office of the Anti-Corruption Bureau, where the officials directed him to

record the conversation of the main accused, Anil Markande, as well. In

compliance thereof, he proceeded to Temri on 07.10.2010, where a

public grievance redressal camp “Jan Samasya Nivaran Shivir” was

being held, and recorded his conversation with the said accused, in

which, according to him, the accused demanded an illegal gratification

of Rs. 5,000/-. On 11.10.2010, the complainant filed second complaint

vide Ex. P/05 against the accused with consent of his wife Smt. Alka

Tiwari in which he admitted his signatures on A to A part. On the same

day, he produced five currency notes of Rs. 1,000/- denomination each,

totalling Rs. 5,000/-, before the Anti-Corruption Bureau, stated to be the

alleged bribe amount. The tape recorder produced by the complainant

was received by the ACB officials, and upon playback of the recorded

conversation, a transcript thereof was prepared vide Ex. P/06

consisting of four pages. The said tape recorder was thereafter seized

vide seizure memo Ex. P/07, and a compact disc (CD) was also

prepared. The preliminary proceedings in this regard are exhibited as

Ex. P/08 consisting of 03 pages. The complainant was called to the

Simga Rest House on 12.10.2010, and he reached there at about 07:00

a.m. on the same day. The Anti-Corruption Bureau officials also

10

reached the said place shortly thereafter. The complainant was

reintroduced to the panch witness and the members of the trap team,

and thereafter his personal search was conducted by the ACB officials.

The personal search memo (Jama Talashi) has been marked as Ex.

P/09. Thereafter, the ACB officers applied phenolphthalein powder to

the tainted currency notes and handed over the said notes to the

complainant, instructing him as to the manner in which the same were

to be handed over to the accused. Subsequently, on the same day, i.e.,

12.10.2010, the complainant proceeded to Nawagarh along with the

trap team and upon reaching there, he entered the Block Education

Office, where the B.E.O was not present at that time. After some time,

the said officer arrived at the office. Thereafter, the complainant stated

that he had brought Rs. 5,000/- to be given to the accused, Anil

Markande. The accused, Anil Markande, then took him to the office hall,

where the complainant handed over the said bribe amount to him. The

accused, Anil Markande, kept the said amount in the left pocket of his

pant. The complainant thereafter came outside and gave the pre-

arranged signal to the trap team by scratching his head, whereupon the

trap team entered the office and initiated the trap proceedings and

recoverd the said tainted currency notes and thereafter the hands of the

complainant and accused Anil Markande were washed and the colour

of the solution turned pink. He further deposed that the accused,

Ramesh Chauhan, was also summoned to the spot by the trap team.

However, he stated that he does not recollect whether the hands of the

accused, Ramesh Chauhan, were subjected to a hand-wash test by the

trap team. He further deposed that the tainted currency notes were

seized by the trap team and the requisite seizure proceedings were

11

carried out. During the course of the proceedings, the currency notes

were subjected to a chemical test, whereupon the solution in contact

with the notes turned pink in colour. He further stated that the voice

recording produced by the complainant and handed over to the ACB

officials was played on a laptop; however, owing to excessive

background noise and disturbance, the conversation recorded therein

was not clearly audible. The transcription memorandum is Ex. P/11,

seizure memo of C.D. is Ex. P/12 and the proceeding memo is Ex.

P/13. In paragraph 14 of his cross-examination, he admitted that he

had not lodged any complaint regarding the non-payment of his wife's

salary for the period from January to May. In paragraph 15 of his cross-

examination, he admitted that he had no knowledge of the news report

shown to him, published in the “Dainik Bhaskar”, Balod–Bemetara

edition dated 22.02.2014, wherein it was stated that arrears had not

been released owing to non-allocation of funds, that the Shikshakarmis

had expressed dissatisfaction over the delay, and that nearly 800

teachers were awaiting disbursement of their salaries. The original copy

of the said newspaper was presented by the defence vide Ex. D/01. He

further admitted in paragraph 20 of his cross-examination that, prior to

lodging the complaint before the Anti-Corruption Bureau, he had never

interacted with nor held any conversation with the accused, Anil

Markande. He also admitted that the application submitted to the Block

Education Officer, Navgarh, was in his handwriting. In para 31 of his

cross-examination, he admitted that the trap team entered the office

hall only after he gave the pre-arranged signal, and that witness Konher

recovered the tainted currency notes from the left pocket of accused

Anil Markande. He further stated that he is unable to recollect the pant

12

colour of the accused as he did not note the same thing in his diary. He

denied by saying that the witness Konher after recovering the said

tainted currency notes put them back into the accused’s pocket. He

further denied the suggestion that, when the Block Education Officer

noticed him while he was placing the currency notes, he had caught

hold of the Officer's hand from behind the wrist. In para 34 of his cross-

examination, he admitted that apart from his wife, Smt. Alka Tiwari, a

cheque for Rs. 2,797/- had also been issued in respect of co- teacher

Dushyant Sahu. It is further admitted that the salary of Dushyant Sahu

was being drawn through the Temri Branch of the Bank.

He further admitted in paras 37 and 38 of his cross-examination

which are reproduced herein for ready reference as under:-

“ 37. 39,158/-रु.

का चेक मुझेदिनांक

05.10.10

को प्राप्त हुआ था वह मेरे

पत्नी का नाम का था।दिनांक

05.10.10

को मेरी पत्नी अलकातिवारी वेतन

संबंधितचेक लेने केलिये नहीं गई थी। उक्त चेकदिनांक

04.10.10

को बन

गया थाजिसकी सूचना मुझे नहीं था रमेश चौहान ने चेक बन गया है कहकर

सुचना नहींदिया था

I

रमेश चौहान से वेतन संबंधितबातकरने केलियेकिस

दिनांक को गया था वहदिनांक आजमुझे यादनहीं है। रमेश चौहान नेदिनांक

05.10.10

के पूर्वमुझे बताया थाकिसाहब को पैसादेना पड़ेगा लेकिन वह

दिनांक मुझे यादनहीं है। मैं उसदिनांक का उल्लेख प्रपी

-03

में नहींकिया। वाईस

रिकार्डर एसीबी कार्यालय सेदिनांक

04-10-10

को शाम को हीमिल गया था।

यह सही हैकिउक्त वाईसरिकार्डखाली था

I

38. ……..

यह कहना सही हैकिरमेश चौहान के अलावा कार्यालय में और

लोग भी थे।दिनांक

05.10.10

से वाईसरिकार्डरदिनांक

10.10.10 त

क

वाईसरिकार्डमेरे पास था। उक्त वाईसरिकार्डर को अपने घर में रखा था। यह

कहना सही हैकिरमेश चौहान को मैंने कोई रकम नहींदिया था। यह कहना सही

हैकिरमेश चौहान ने अपनेलिए पैसे की कोई मांग नहीं की थी।

"

13

15.PW-02 Smt. Alka Tiwari wife of the complainant has stated in para 2 of

her examination-in-chief which is reproduced for ready reference as

under:-

“ 02. ……...

मेरे पतिकई बार आरोपीगण के कार्यालय में गए और उन्होने

आवेदन लगायातो मेरे पतिको आरोपी चौहान नेतनख्वाहनिकालने के

लिए कुछ पैसे लगेंगे बोले

,

कितना पैसा पूछने पर

5000/-

रूपए लगेगा

बोले। इस बातको मेरे पतिने मुझे बताया था। मैने अपने पतिको एसीबी

रायपुर मेशिकायतकरने केलिए सहमतिअधिकार पत्रलिखकरदी थी।

उस समय मेरीडिलवरी हो चुकी थी

,

इसी कारण मैं एसीबी रायपुर मे

शिकायतकरने नहींजा पाई और अपने पतिकोशिकायतकरने केलिए

कही थी। मैंने अपनी रूकी हुई वेतन को प्राप्त करने हेतुविकास खण्डशिक्षा

अधिकारी नवागढ़ को वेतन प्राप्त करने एवंनियमितकरने हेतु पत्रलिखी थी

और उसकी एक प्रतिअपने पतिकोदी थी। उक्त पत्र की छायाप्रतिएवं मेरे

बैंक पास बुक की छायाप्रतिप्रकरण में संलग्न है।

"

In para 04 of her cross-examination, she admitted that she signed Ex.

P/02 at the instance of her husband, the complainant Shyam Kumar

Tiwari and she also admitted that no demand for a bribe amount of Rs.

5,000/- was made in her presence. In para 05 of her cross-examination,

she admitted that Ex. P/02 does not bear any date beneath her

signature. In para 07 of her cross-examination, she stated that she was

not aware whether her salary cheque for Rs. 39,158/-, drawn on the

Temri Branch of the State Bank, had been signed on 04.10.2010 and

delivered to her husband on 05.10.2010. She further stated that she

could not say when the said cheque was encashed or withdrawn.

In para 09 of her cross-examination she admitted as under:-

“9. …...

यह कहना सही हैकिचेक प्राप्त होतेतकदिनांक

05-10-10

तक कोईरिश्वतकी रकम नहींदी गई थी। साक्षी ने स्वतः कहाकिमुझे इस

14

संबंधमेंजानकारी नहीं है इस बारे मे मेरे पतिबता सकते है।

"

16.PW-04 Ashutosh Konher is panch witness. He admitted his signatures

on all the documents and stated that he had accompanied the trap

team, which was standing near the office premises. Upon receiving a

pre-arranged signal from the complainant, they proceeded to the room

of accused Anil Markande, where he was apprehended, his hand was

held, a search was conducted, and five currency notes of Rs. 1,000/-

each were recovered from his pocket. The personal search memo

(Jama Talashi) is Ex. P/16, seizure memo of bribe money is Ex. P/17,

proceeding of phenolphthalein test is Ex. P/18.

In para 16 of his cross-examination, he has stated as under:-

“16. ...

यह बातसही हैकिलिप्यांतरण प्रपी

-06

प्रार्थीश्यामतिवारी के द्वारा

वाईसरिकार्डर में आवाजको सुनकर उसके आधार परकिया गया था। आजमैं

ख्याल से नहीं बता सकता प्रपी

06

में प्रार्थीश्यामतिवारी एवं आरोपी के अतिरिक्त

किसी अन्य व्यक्तिकी आवाजथी या नहीं। आजमुझे यह भी ख्याल नहीं हैकि

प्रपी-06

केलिप्यांतरण के समय प्रार्थीश्यामतिवारी ने अभियुक्तगणों के अतिरिक्त

किसी अन्य के नाम भी उस वाईसरिकार्डर में आवाजरहा है या नहीं संबंधसे

बताया था या नहीं।

"

In para 30 of his cross-examination he has stated as thus:-

“30. ….

इस बातकीजानकारी नहीं हैकिवाईसरिकार्डकितनेदिनतक

प्रार्थीके पास था। वाईसरिकार्डकार्यालय का था या नहीं इसके संबंधमें मुझे

जानकारी नहीं है। वाईसरिकार्डमें बहुतसी बाते अस्पष्ट थी कई लोगों की

आवाजें आ रही थी। रमेश चौहान से कुछदस्तावेजजप्त हुए थेजोशिक्षाविभाग

के कार्यालय से संबंधितथे

,

वहदस्तावेजकिसके अधिकार में थे इसके संबंधमें

मुझेजानकारी नहीं है।

17. The other panch witness, PW-07 Jagdish Prasad Vaishy, supported the

15

trap proceedings and admitted his signatures on all the documents.

However, he was declared hostile on certain points by the prosecution.

Thereafter, he accepted the suggestions put forth by the prosecution

and admitted his signatures on Ex. P/15.

18.PW-08 Pawan Kumar Pathak, Head Constable, stated that he prepared

the transcript, Ex. P/06, from the voice recorder with the assistance of

the complainant. He further stated that he was a member of the trap

team and deposed regarding the entire proceedings. In his cross-

examination, he admitted that he did not witness the manner in which

the complainant allegedly handed over the money to the accused. In

paragraph 20 of his cross-examination, he stated that he was unable to

specify the company to which the CD belonged. He further admitted

that the voice recorded in the voice recorder was not subjected to

comparison with the voices of the complainant and the accused.

19.PW-11 U.K. Chandravanshi, Investigating Officer stated that

complainant Shyam Kumar Tiwari gave complaint on 04.10.2010 and

he gave tape recorder to the complainant vide Ex. P/04. He further

stated that the complainant Shyam Kumar Tiwari on 11.10.2010 has

filed second complaint vide Ex. P/05 and also consent letter vide Ex.

P/02 of his wife Smt. Alka Tiwari dated 08.10.2010. He further stated

that vide Ex. P/21, he called two panch witnesses and he stated about

preliminary proceeding and admitted his signatures on preliminary

proceeding memo Ex. P/08, search memo Ex. P/09, proceeding memo

Ex. P/10, seizure memo Ex. P/15 and also admitted his signature on

seizure memo Ex. P/19, arrest memo Ex. P/20.

16

In para 27 of his cross-examination, he stated as under:-

“ 27...

यह बातसही हैकिलिप्यांतरण में क्षत्रीय नामक व्यक्तिके संबंधमें बातें

आयी होने के बादभी उसकेविरुदकार्यवाही नही की क्योकिमैंने ऐसा करना

आवश्यक नही समझा

..”

In paras 30, 31, 33 and 35 he admitted as under:-

“ 30….

यह बातसही हैकिनवागढ़जाने के बादहमें प्रार्थीके द्वारा यह बताया

गयाकिअभियुक्त अनिल मारकण्डेय कार्यालय में नहीं है। मुझे इस बातकी

जानकारी नहीं हैकिप्रार्थीनेकिससे फोन कर अभियुक्त कार्यालय में या नहीं है

पूछा

I”

31.

यह कहना सही हैकिरिश्वतदेने के पूर्वप्राथर्थीश्यामतिवारी अभियुक्त के

कार्यालय में लगभग

20

मिनट से आधा घंटा का समय लग गया उसके बाद

इशाराकिया। प्रार्थीने हमें यह नहीं बतायाकिजब वह अभियुक्त के पासरिश्वती

रकमदेने गयातो उस समय उनके कार्यालय के सुबोधहरी श्रीवास्तव एवं

हरदयाल श्रीवास वगैरह थे। अब कहाकिप्रार्थीजब वहा पहुंचातो आरोपी के

कार्यालय केतीन

-

छः व्यक्तियहा मौजूदहोना बतायातो था परंतु उनमें सेकिसी

…”

का भी नाम नहीं बताया था।

33. ...

यह बातसही हैकिप्रार्थीके द्वारादिये गयेद्वितीयशिकायतआवेदन पत्र

में

प्रार्थीने प्र

.पी.05

के स से स भाग पर यहलिखा हुआ हैकिमेरे पत्नी अल्का के

नाम का

39,158/-

रूपये का चेक प्राप्त हो चुका है

I प्र.

पी

02

अधिकार पत्र

/सहम

ति

पत्र मेंदस्तावेजकिसनेतैयारकिया है इसका उल्लेख नहीं है। यह कहना सही हैकि

दिनांक

08.10.2010

के पहले प्रार्थीनेदिनांक

04 10.2010

को प्रथमशिकायत

पत्रदिया था। यह कहना सही हैकिदिनांक

04.10.2010

को प्रार्थीके पास कोई

अधिकार पत्र नहीं था।रिकार्डदेखकर नहीं बता सकताकिप्र

.पी.30

के आदेश के

संबंधसे अति

.

पुलिस महानिर्देशक के कार्यालय से कौन कर्मचारी या अधिकारी

विधिएवंविधायी कार्यविभाग मंत्रालय लेकर गया था। उसीतरीके से अभियोजन

स्वीकृतिप्रदान करने केलिये मुख्यालय एंटी करप्शन ब्यूरो रायपुर से क्या क्या

17

दस्तावेजविधिएवंविधायी का कार्यविभाग मंत्रालय रायपुर भेजा गया था इसकी

जानकारी मुझे नहीं है।

"

35.

यह बातसही हैकिलिपियांतरण प्र

.पी.06

में ऐसा कही भी लेख नही हैकि

प्रार्थीदिनांक

12.10.2010

को अभियुक्त कोरिश्वतका रकम कोदेने केलिये

बुलाया है। यह बातसही हैकिअभियुक्तगणों वो आवाजका कोईविशेषज्ञ सेजांच

नही कराया गया है। यह बातसही हैकिअभियुक्तगणों कोगिरफतार करने के बाद

भी उनके आवाजका कोई परीक्षण नही कराया गया है

...I”

20.From a careful scrutiny of the statements of the witnesses, it is evident

that the complainant, Shyam Kumar Tiwari, lodged two complaints,

namely the first complaint dated 04.10.2010, Ex. P/03, and the second

complaint dated 11.10.2010, Ex. P/05. The complainant, PW-03 Shyam

Kumar Tiwari, as well as his wife, PW-02 Smt. Alka Tiwari, have

admitted that they received the cheque on 05.10.2010. PW-02 Smt.

Alka Tiwari stated in para 09 of her cross-examination which reads as

thus:-

“9. ...

यह कहना सही हैकिचेक प्राप्त होतेतकदिनांक

05-10-10

तक कोई

रिश्वतकी रकम नहींदी गई थी। साक्षी ने स्वतः कहाकिमुझे इस संबंधमें

जानकारी नहीं है

.

इस बारे मे मेरे पतिबता सकते है।

"

The Investigating Officer, PW-11 U.K. Chandravanshi, clearly

admitted that he had not obtained the voice samples of either the

accused or the complainant. The complainant, PW-03 Shyam Kumar

Tiwari, further admitted in paragraph 38 of his cross-examination that

the voice recorder remained in his custody at his residence from

05.10.2010 to 10.10.2010.

It is also written in transcription Ex. P/06 which is reproduced for

ready reference as under:

"

प्रार्थीएवं आरोपीगण के मध्यदिनांक

05

एवं

07.10.2010

कोरिश्वतपूर्व

18

बातचीतकालिप्यतिरण प्रार्थीश्री श्याम कुनारतिवारी के सहयोग से आरोपीगणों

की आवाजको अलग

-

अलग पहचान करकिया गया

I”

The transcript, Ex. P/06, was prepared on 11.10.2010. The

complainant, Shyam Kumar Tiwari, clearly admitted that the voice

recorder remained in his custody from 05.10.2010 to 10.10.2010. PW-

08 Pawan Kumar Pathak and PW-11 U.K. Chandravanshi, the

Investigating Officer, identified the voice of the accused at the instance

of the complainant. They further admitted that the recorded

conversation was not clear due to the presence of multiple persons. As

per the complainant, the alleged conversation was recorded on

05.10.2010 and 07.10.2010, and the tape recorder was seized on

11.10.2010. In these circumstances, the possibility of tampering with

the tape recorder cannot be ruled out. It is further evident that no

certificate under Section 65-B of the Indian Evidence Act, 1872 was

produced by the prosecution in respect of the electronic record. It is

also apparent that the entire proceedings were conducted qua accused

Anil Markande. The presence of the other accused, Ramesh Chauhan,

has not been established by the prosecution, and no recovery has been

effected from him.

21.Hon’ble Apex Court in the matter of State of Lokayuktha Police

Davanagere(supra) held in paras 25 and 27 as under:-

“25. It is pertinent to note that till 05.02.2007, when the

Respondent had conducted the physical/spot

inspection, there is not even a whisper of there being

any demand of bribe. Moreover, when the Complainant

19

went back to the Respondent’s office at 5:30 PM with

the money, the prosecution case itself as per the

deposition of its witnesses makes it clear that the

Respondent had informed the Complainant that he had

already forwarded the concerned file. Thus, if the same

is accepted, there was no occasion for the

Complainant to go ahead with paying the amount,

which he claims to be in the nature of bribe demanded

by the Respondent, after the work for which the bribe

was purportedly sought, had already been done. The

observation of the High Court to this extent is correct

that just because money changed hands, in cases like

the present, it cannot be ipso facto presumed that the

same was pursuant to a demand, for the law requires

that for conviction under the Act, an entire chain –

beginning from demand, acceptance, and recovery has

to be completed. In the case at hand, when the initial

demand itself suspicious, even if the two other

components – of payment and recovery can be held to

have been proved, the chain would not be complete. A

penal law has to be strictly construed [ Md. Rahim Ali v

State of Assam , 2024 SCC OnLine SC 1695 @

Paragraph 45 and Jay Kishan v State of U.P., 2025 SCC

OnLine SC 296 @ Paragraph 24]. While we will advert

to the presumption under Section 20 of the Act

hereinafter, there is no cavil that while a reverse onus

under specific statute can be placed on an accused,

20

even then, there cannot be a presumption which casts

an uncalled for onus on the accused. Chandrasha

(supra) would not apply as demand has not been

proven. In Paritala Sudhakar v State of Telangana ,

2025 SCC OnLine SC 1072, it was stated thus:

‘21. As far as the submission of the State is that

the presumption under Section 20 of the Act, as

it then was, would operate against the Appellant

is concerned, our analysis supra would indicate

that the factum of demand , in the backdrop of

an element of animus between the Appellant and

complainant, is not proved. In such

circumstances, the presumption under Section

20 of the Act would not militate against the

Appellant, in terms of the pronouncement in Om

Parkash v. State of Haryana , (2006) 2 SCC 250:

22. In view of the aforementioned discrepancies

in the prosecution case, we are of the opinion

that the defence story set up by the appellant

cannot be said to be wholly improbable.

Furthermore, it is not a case where the burden of

proof was on the accused in terms of Section 20

of the Act. Even otherwise, where demand has

not been proved, Section 20 will also have no

application. (Union of 13 of 15 India v. Purnandu

Biswas [(2005) 12 SCC 576: ( 2005) 8 Scale 246] and T.

Subramanian v. State of T.N. [(2006) 1 SCC 401:

21

(2006) 1 Scale 116])’ (emphasis supplied)’ (emphasis

in bold is original, underlining is ours)

27. Though it can be commented that the High Court

was required to give detailed factual reasoning, which

has not been done, as to why it was overturning an

order of conviction by that of acquittal, yet since the

factum of demand itself has not been proved beyond

reasonable doubt, the acquittal of the Respondent by

the Impugned Judgment cannot be termed perverse or

unwarranted, in the factual matrix of the present lis. In

Yadwinder Singh v Lakhi, 2025 SCC OnLine SC 686,

this Court opined that ‘The Trial Court could have

better worded its 14 of 15 order through clearer

reasoning.’ However, upon examination of all relevant

factors, the Court chose to restore the order of the

Trial Court therein and set aside the order impugned

therein, upon examining all factors of the matter itself.

In the instant case, needless to add, we have applied

our mind independently to all material aspects and

find ourselves ad idem with the conclusion of the High

Court.”

22.Hon’ble Apex Court in the matter P. Somaraju (supra) held in paras 21,

22 and 23 which reads as thus:-

“ 21. Needless to say, the above observations are not

tenable in law. Moreover, what we find particularly troubling

is the complainant’s conduct in directing Rajender, the

22

mediator and accompanying independent witness, to remain

outside the appellant’s office during the crucial half-hour in

which the alleged demand and acceptance occurred. This

was contrary to the explicit instructions of the DSP.

Rajender could consequently make no positive statement on

whether the appellant demanded or accepted any bribe, and

this gap is candidly admitted by the prosecution itself.

22. Both, the DSP and the Inspector of ACB, admit they did

not question the complainant on this point, and till date no

explanation has ever been offered for keeping Rajender out

of the room. They also admit that they did not question any

of the other office staff or visitors. We note that the other

mediator Balaji was not examined by the prosecution at all.

These circumstances are nowhere addressed by the High

Court. Such omissions cannot be brushed aside lightly, as

they strike at the root of the prosecution version and cast

serious doubt on whether demand and acceptance were

proved beyond reasonable doubt.

23. In contrast, the defence has consistently maintained that

the alleged demand and acceptance of bribe never took

place. According to the appellant, the complainant entered

his office alone and during the appellant’s brief absence,

placed the tainted amount in the left-drawer of the table.

Accordingly, when the trap-party entered, the appellant

immediately denied having received any money, and the

phenolphthalein test on both hands yielded negative

results.”

23.Hon’ble Delhi High Court in the matter of Romesh Sharma (supra) held

in paras 77,78,79,80,81, 82 and 83 which reads as under:-

23

“ 77. The Apex Court again, considered the conditions of admissibility

of these Telephonic conversations in Ram Singh vs. Col Ram Singh , 1986

AIR (SC) 3 while holding that "...We can see no difference in principle

between a tape-recording and a photograph. In saying this we must not

be taken as saying that such recordings are admissible whatever the

circumstances, but it does appear to this Court wrong to deny to the

law of evidence advantages to be gained by new techniques and new

devices, provided the accuracy of the recording can be proved and

the voices recorded properly identified; provided also that the

evidence is relevant and otherwise admissible, we are satisfied that

a tape- recording is admissible in evidence. Such evidence should

always be regarded with some caution and assessed in the light of

all the circumstances of each case. ... " and further proceeded to lay

down the following conditions qua the same:

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

admissibility of a tape recorded 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 voice 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 recorded statement has to be

proved by the maker of the record by satisfactory evidence -

direct or circumstantial.

24

3. Every possibility of tampering with or erasure of a part of

a tape recorded 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 rules of

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 and not lost

or distorted by other sounds or disturbances."

78. The first aspect of recorded cassette is the integrity of the chain

of custody of the cassettes for which it must be carefully sealed and

kept in safe or official custody. As per the charge Sheet, the

conversations were intercepted by Insp. Ishwar Singh and were heard

on parallel Line by HC Dilbagh Singh for the period between

01.10.1998 & 20.10.1998 and were recorded in the four cassettes.

One cassette pertained to this case and was handed over by HC

Dilbagh Singh to IO, Insp. Ishwar Singh and was signed by Inspr.

Ishwar Singh and HC Dilbagh Singh, only on 03.11.1998 i.e. 13 days

after the alleged period. After putting the cassette into its cover, a

parcel was prepared which was sealed with the seal of I.S. and the

cassette was seized and seizure memo thereof was prepared.

79. While alleging that conversation was recorded between 01.10.1998

& 20.10.1998, i.e. for 20 days, it is only a small snippet of conversation

relied by the prosecution, but significantly the particular date of

recording that particular conversation is conspicuously missing. A

vague assertion of it being recorded on one of the days and not

25

indicating the specific date on which the conversation was recorded,

itself indicates the unreliability and the uncertainty of this alleged

conversation.

80. Secondly, there is no explanation forthcoming as to why the

cassette was retained by HC Dilbagh Singh from 21.10.1998 till

03.11.1998 and why was it not sealed immediately, upon recording of

relevant conversation.

81.The non-securing and immediate sealing, assumes significance as

it creates a distinct possibility of tampering, erasing or doctoring of the

magnetic tape.

82. Consequently, the integrity of securing the electronic

evidence is compromised and the possibility of it being

manipulated during the period it was in the possession of HC

Dilbagh Singh or IO, Insp. Ishwar Singh, cannot be over ruled and

cannot be held reliable even at the stage of framing of a charge.

83.The next aspect for the admissibility of such a statement, is to

identify the voice of the speaker. In the case of Ram Singh, (supra) and

Nilesh Dinkar Paradkar vs. State of Maharashtra, 2011(3) JCC 1972, it was

held that the voice of the speaker must be duly identified, and the

accuracy of the recording proved by satisfactory evidence.

24.This Court in the matter of Arun Kumar Vishwakarma (supra) held in

paras 13 and 16 which reads as under:-

“13. Further in (2014) 13 SCC 55 (B. Jayaraj v. State of Andhra

Pradesh), it was held by the Supreme Court as under:

7. Insofar as the offence under Section 7 is concerned, it

26

is a settled position in law that demand of illegal

gratification is sine qua non to constitute the said offence

and mere recovery of currency notes cannot constitute

the offence under Section 7 unless it is proved beyond all

reasonable doubt that the accused voluntarily accepted

the money knowing it to be a bribe. The above position

has been succinctly laid down in several judgments of

this Court. By way of illustration reference may be made

to the decision in C.M. Sharma v. State of A.P., (2010) 15

SCC 1 and C.M. Girish Babu v. CBI, (2009) 3 SCC 779.

8. In the present case, the complainant did not support

the prosecution case insofar as demand by the accused

is concerned. The prosecution has not examined any

other witness, present at the time when the money was

allegedly handed over to the accused by the

complainant, to prove that the same was pursuant to any

demand made by the accused. When the complainant

himself had disowned what he had stated in the initial

complaint (Ext. P-11) before LW 9, and there is no other

evidence to prove that the accused had made any

demand, the evidence of PW 1 and the contents of Ext.

P-11 cannot be relied upon to come to the conclusion

that the above material furnishes proof of the demand

allegedly made by the accused. We are, therefore,

inclined to hold that the learned trial court as well as the

High Court was not correct in holding the demand

27

alleged to be made by the accused as proved. The only

other material available is the recovery of the tainted

currency notes from the possession of the accused. In

fact such possession is admitted by the accused himself.

Mere possession and recovery of the currency notes

from the accused without proof of demand will not bring

home the offence under Section 7. The above also will be

conclusive insofar as the offence under Sections 13(1)(d)

(i) and (ii) is concerned as in the absence of any proof of

demand for illegal gratification, the use of corrupt or

illegal means or abuse of position as a public servant to

obtain any valuable thing or pecuniary advantage cannot

be held to be established.

9. Insofar as the presumption permissible to be drawn

under Section 20 of the Act is concerned, such

presumption can only be in respect of the offence under

Section 7 and not the offences under Sections 13(1)(d)(i)

and (ii) of the Act. In any event, it is only on proof of

acceptance of illegal gratification that presumption can

be drawn under Section 20 of the Act that such

gratification was received for doing or forbearing to do

any official act. Proof of acceptance of illegal gratification

can follow only if there is proof of demand. As the same

is lacking in the present case the primary facts on the

basis of which the legal presumption under Section 20

can be drawn are wholly absent.

28

16. Reiterating the judgment of B. Jayaraj case (supra) and P.

Satyanarayana Murthy case (supra), again, in (2016) 3 SCC 108

(Krishan Chander v. State of Delhi), it was held by the Supreme

Court thus:

"35. It is well-settled position of law that the demand for

the bribe money is sine qua non to convict the accused

for the offences punishable under Sections 7 and 13(1)

(d) read with Section 13(2) of the PC Act. The same legal

principle has been held by this Court in B. Jayaraj v.

State of A.P., (2014) 13 SCC 55. A. Subair v. State of

Kerala, (2009) 6 SCC 587 and P Satyanarayana Murthy

v. State of A.P., (2015) 10 SCC 152 upon which reliance

is rightly placed by the learned Senior Counsel on behalf

of the appellant."

paragraph 39, it was further held by the Supreme Court thus:

"39. In view of the aforesaid reasons, the approach of

both the trial court and the High Court in the case is

erroneous as both the courts have relied upon the

evidence of the prosecution on the aspect of demand of

illegal gratification from the complainant Jai Bhagwan

(PW2) by the appellant though there is no substantive

evidence in this regard and the appellant was

erroneously convicted for the charges framed against

him. The prosecution has failed to prove the factum of

demand of bribe money made by the appellant from the

complainant Jai Bhagwan (PW2), which is the sine qua

non for convicting him for the offences punishable under

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

PC Act. Thus, the impugned judgment and order

[Krishan Chander v. State of Delhi, 2014 SCC OnLine

Del 2312] of the High Court is not only erroneous but

also suffers from error in law and therefore, liable to be

set aside."

29

25.In light of the aforesaid judgments, it is evident that, in the present case

as well, the prosecution has utterly failed to prove the demand of bribe.

The conduct of the complainant, PW-03 Shyam Kumar Tiwari, appears

to be highly suspicious. It is also evident that the main complainant is

PW-02 Smt. Alka Tiwari, the wife of PW-03 Shyam Kumar Tiwari;

however, he lodged the first complaint on 04.10.2010 vide Ex. P/03.

Thereafter, Smt. Alka Tiwari gave her consent letter vide Ex. P/02 on

08.10.2010, and subsequently, the second complaint was lodged on

011.10.2010 vide Ex. P/05. It further appears that the complainant was

in possession of a voice recorder and allegedly recorded conversations

with the accused on 05.10.2010 and 07.10.2010, which was produced

before the ACB on 11.10.2010. On the same day, the transcript, Ex.

P/06, was prepared. It is also evident that no voice samples were

collected by the prosecution, and the voices were identified as those of

the accused and the complainant solely on the basis of the

complainant’s version. The Investigating Officer, PW-11 U.K.

Chandravanshi, has also admitted that another person, Kshatriy, was

involved in the conversation; however, the prosecution neither cited him

as a witness nor examined him before the learned Trial Court. The

complainant, PW-03 Shyam Kumar Tiwari, and his wife, PW-02 Smt.

Alka Tiwari, have admitted that they received the cheque on

05.10.2010, and thereafter the trap proceedings were conducted,

thereby rendering the prosecution story doubtful. In the absence of a

certificate under Section 65-B of the Indian Evidence Act, 1872, and in

the absence of any voice sample or FSL report, the voice recording

cannot be relied upon. However, the learned Trial Court, in my view,

failed to properly appreciate these material inconsistencies and has

30

recorded perverse findings. Accordingly, the conviction and sentence

imposed by the learned Trial Court are not sustainable in law, and the

appellants are entitled to the benefit of doubt.

26.Ex consequenti, the appeal is allowed and the impugned judgment

dated 08.9.2017 is set aside. The appellants are acquitted of all the

charges levelled against them.

27.The appellants are reported to be on bail. However, keeping in view the

provisions of section 481 of BNSS 2023, the appellants are directed to

furnish a personal bond for a sum of Rs. 25,000/- each in the like

amount before the court concerned forthwith, 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.

28.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

U.K. Raju