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2026:CGHC:8242

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Reserved on : 28-01-2026

Delivered on : 16-02-2026

ACQA No. 260 of 2019

State of Chhattisgarh Through The Police Station- Eow / Acb, Bilaspur,

Chhattisgarh., District : Bilaspur, Chhattisgarh

... Appellant/State

versus

Tobius Xaxa S/o Shri V. Xaxa Aged About 38 Years R/o Village- Mahapalli, Police

Station- Chakradhar Nagar, District- Raigarh, Chhattisgarh. Post- Police

Inspector, Police Station- Dhourpur, District- Surguja, Chhattisgarh., District :

Surguja (Ambikapur), Chhattisgarh

Respondents.

For appellant/State.:Mr. Sanjay Pandey,Dy. Govt. Advocate with

Mr. Ashutosh Shukla, Panel Lawyer.

For Respondent(s):Ms. Vaishali Jeswani, Advocate appears on behalf of

Mr. Sangeet Kumar Kushwaha, Advocate

(Hon’ble Mr. Justice Narendra Kumar Vyas)

CAV Order

1.The State has preferred this Acquittal Appeal under Section 372 of

the Code of Criminal Procedure against the judgment of acquittal

dated 30-6-2018 passed by the learned Special Judge under

Prevention of Corruption Act, Ambikapur, District Surguja (CG) in

Special Criminal Case No. 3 of 2014 whereby the accused has been

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acquitted from offence punishable under Sections 7 and 13 (1)(D)

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

(for short, “The Act, 1988”).

2.The case of the prosecution, in brief, is that on 3-5-2011 the

complainant Chandrajit Yadav made a complaint (Ex. P/4) against

the respondent to the Dy. Superintendent of Police, Anti Corruption

Bureau, Bilaspur, alleging that a dispute arose between his sons

namely Ayodhya Yadav and Jay Kishan Yadav who is resident of

village Damakudkuda on 23-4-2011 which resulted into physical

altercation. Jaykishan filed a report at Dhaurpur Police Station

against Ayodhya Yadav and his friend namely Suresh @ Deriha.

Accordingly, he met Police Station In-charge on 24-4-2011 at Thana

Dhaurpur, then he after taking the names of his son and friend told

him that he will close the case. Accordingly, he sent his son and his

friend to the Police Station, but the accused has assaulted them by

his constable and when he requested then he demanded Rs.

50,000/- otherwise, charges will be framed against him. The

complainant immediately given Rs. 5,000/- to him, but he against

demanded for Rs. 50,000/- and assured him that he will make small

case against them otherwise, serious charges will be framed against

them. The complainant requested the appellant that it is not possible

for him to give such a huge amount immediately, then he asked him

to arrange within 1 or 2 days. The complainant came to the accused

on 26-4-2011 and given Rs. 10,000/- to him then accused told him

that he is reducing Rs. 5,000/- from the amount of Rs. 50,000/-

accordingly, the accused told him to bring remaining Rs. 30,000/-

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within one or two days. The accused after putting signature of his

son in some papers asked the complainant to take away his son.

The complainant has recorded the negotiation between the accused

and the complainant through mobile phone of his son Ayodhya.

Since the complainant is not inclined to give Rs. 30,000/- to the

accused, he contacted the Anti Corruption Bureau then the Dy.

Superintendent of Police advised him to talk to the accused and he

has recorded the negotiation which took place on 26-4-2011 as well

as on 27-4-2011 and also prepared CD of the same.

3.On the basis of complaint made by the complainant, information for

cognizable offence under Section 154 was registered against the

accused for commission of offence under Section 7 of The Act, 1988

on 3-5-2011. Thereafter, proceeding for catching the accused red

handed was initiated and a trap team was constituted. The

complainant was given currency notes containing phenolphthalein

powder and as per the direction given by the trap team on 04-05-

2011, the said currency was given to the respondent/accused by the

complainant as bribe amount, thereafter the trap team reached at

the place of occurrence and hands of the respondent were washed

out by sodium carbonate and the colour of the water turned to pink

colour and accordingly the respondent/accused was caught red

handed by the Anti Corruption Bureau.

4.During investigation, permission was obtained by the Anti Corruption

Bureau for initiation of proceeding as provided under Section 19 of

the Act, 1988 by the competent authority i.e. Ministry of Home on 08-

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05-2014 which has granted sanction to prosecute the accused. After

usual investigation, charge sheet for commission of offence under

Section 7 and 13((1)(D) of read with Section 13(2) of The Act, 1988

was filed against the respondent/accused before the Special Judge,

Prevention of Corruption Act, 1988.

5.In order to bring home the guilt of accused/respondent the

prosecution has examined as many as 14 witnesses namely- G.S,.

Minj, Inspector (PW/1), Narayan Nimuje Superintending Engineer,

PMGSY, Bilaspur (PW/2), Chandrajeet Yadav (PW/3), S.P. Korosiya,

Dy. Superintendent of Police (PW/4), R.D. Sahu, SDO Forest,

Biolaspur (PW/5), Naveen Kumar Shrivastava, Patwari (PW/6),

Bhuneshwar Rao Shinde, Peon (PW/7), Subhas Yadav, nephew of

complainant (PW/8), Sushil Kumar Soni, Assistant Grade II (PW/9),

Ayodhya Prasad s/o complainant (PW/10), Vedram Sinha, Constable

(PW/11), Smt. Kiran Gupta, Inspector (PW/12), O.P. Pal, Additional

Transport Commissioner (PW/13), Adiya Heeradhar, Dy.

Superintendent of Police (the then Inspector( (PW/14) and

Ramakant Sharma, Dy. Superintendent of Police (the then Inspector)

(PW/15) and exhibited documents ie., FIR (Ex.P/1), receipt memo

(Ex.P/1-A), FIR (Ex.P/2), Carbon copy of FIR (Ex.P/2-A), information

regarding crime (Ex.P/3), complaint of complainant (Ex.P/4),

statement of inspector Ramakant Sharma (Ex.P4-A), Seizure memo

(Ex.P/5), Jama Talashi Panchnama (Ex.P/6), seizure memo

(Ex.P/7), Panchnama of tape recorder (Ex.P/8), primary enquiry

panchnama (ExP/9), proceedings adjourned panchnama (Ex.P/10),

Jaama Talasi Panchnama (Ex.P/11), Nazari Naksha (Panchnama)

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Ex.P/12), seizure memo (Ex.P/13 to 16), proceedings Panchanama

(Ex.P/17), transcription panchnama (.Ex.P/18 to 20), panchnama of

arrest (Ex.P/21), letter regarding preparation of map by Patwari

(Ex.P/22), and letter of protocol (.Ex.P/22), prosecution sanction

order (Ex.P/22), covering memo (Ex.P/23), statement of Ayodhya

Prasad Yadav (Ex.P/24), list of items (Ex.P/25), receipt of seized

articles sent to FSL (Ex.P/26), letter of SP, ACB Raipur (Ex.P/26),

letter of Inspector, ACB, Bilaspur (Ex.P/27), information letter

(Ex.P/28), appointment and training programme (Ex.P/28-A), letter

of Dy. Superintendent of Police, ACB, Bilaspur, Test report (Ex.P/-30

& 30-A) and FSL report (Ex.P/30-B).

6.Statement of accused/respondent has been recorded under Section

313 Cr.P.C., in which he denied the allegations leveled against him

and pleaded innocence and false implication. In order to prove his

case, the respondent examined the Jagmohan Tirkey Constable

No.971 (DW/1), Pramod Singh, Reporter (DW/2) and Vibhor

Rastago, Nodal Officer (DW/3) and exhibited documents ie.,

statement of constable Ved Ram Sinha (Ex.D/1), arrest memo

(Ex.D/1 & D/2), letter of Dy.SP ACB, Bilapsur (Ex.D/2), statement of

R.D. Sahu, SDO, Forest, Bilaspur (Ex.D/2. Test report (Ex.D/3),

Jamanatnama (Ex.D/5), details of case diary (Ed.D/6) and certificate

under Section 65-B of the Indian Evidence Act (Ex.D/7), record of

customer profile (Ex.D/8), photo copy of application of Biram Bai

(Ex.D/9), copy of voter ID (Ex.D/10).

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7.Learned Special Judge after appreciating the evidence and material

available on record, vide its judgment dated 30-6-2018 has held that

the prosecution failed to prove case against accused/ respondents

and thereby acquitted him for the offences for which he was

charged.

8.Being aggrieved and dissatisfied with the aforesaid judgment, the

State has filed this Acquittal Appeal. Learned counsel for the State

would submit that the prosecution has proved the demand against

the accused by examining the complainant who has stated in his

evidence that the voice was recorded in his mobile phone by his son

and the memory card was seized from him as per Ex. P/5, as such,

even if the certificate under Section 65-B(4) of the Act of 1872 is not

submitted by the prosecution and the same is not fatal for the

prosecution case as by other circumstantial evidence demand has

also been proved beyond reasonable doubt by the prosecution,

therefore, essential ingredients for conviction has been proved by

the prosecution beyond reasonable doubt. The learned trial Court

has committed illegality in not considering the evidence and material

on record on this aspect and passed the order in mechanical manner

ignoring the vital evidence and material brought on record by the

prosecution, therefore, this Court in exercising its power under

Section 386 of Cr.P.C., can very well interfere in this acquittal

appeal.

9.He would further submit that the learned trial Court has miserably

failed to understand that the demand was proved by the prosecution

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beyond reasonable doubt as the person before whom the money

was given have proved by exhibiting the Panchnamas from Ex.P/18

to P/20 and examination of panch witnesses who have also deposed

before the trial Court that they are the signatory of Panchnamas and

one of the panch witness Vedram Sinha (PW/11) has heard the

demand of money, as such, the finding of the trial Court in paragraph

97 of the judgment that demand has not been proved beyond

reasonable doubt, suffers from perversity as by the circumstances

also the demand made by the accused has been proved by the

prosecution through the circumstantial evidence is illegal and against

the law laid down by the constitutional Bench of Hon’ble Supreme

Court in case of Neeraj Dutta v. State (NCT of Delhi) wherein the

Hon’ble Supreme Court has held that the demand and acceptance

can be proved through oral, documentary, or circumstantial

evidence, even if the complainant turns hostile or is unavailable and

conviction can be sustained by testimony of a reliable independent

witness (panch witness) who overheard the demand, testimony of

the complainant, Phenolphthalein test (hand-wash or pocket-wash

test), unusual conduct of the accused. In the present case all such

circumstantial evidence are available on record, still the trial Court

erred in acquitting the accused and would pray for allowing the

acquittal appeal.

10.Per contra, learned counsel for the respondent/accused would

submit that regarding the alleged demand the documents Ex.P/18 to

Ex. P/20 have not been proved in accordance with the law. To

substantiate her submissions, she would refer to paragraphs 34, 35

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and 36 of the judgment of Hon’ble Supreme Court in the case of

Rahil vs. State (NCT of Delhi), reported in 2025 SCC Online SC

1481, She would further submit that the finding recorded by the

learned trial Court that no demand has been proved, does not suffer

from perversity or illegality and would submit that for convicting the

accused under Prevention of Corruption Act, prosecution has to

prove that there was illegal demand of gratification, then only the

accused can be convicted. She would further submit that even if the

accused was caught red handed by the trap team, still it cannot be

held that there was demand and the accused can be prosecuted. To

substantiate her submissions, she would refer to the judgment of

Hon’ble Supreme Court in the case of Neeraj Dutta vs. State (NCT

of Delhi), reported in (2023) 18 SCC 251 wherein the Hon’ble

Supreme Court has held that unless and until the demand is proved,

offence under Prevention of Corruption Act is not maintainable. She

would further submit that the view taken by the learned trial Court is

not based on perversity or illegality and in view of well settled

position of law that unless and until there is a cogent apparent

mistake while acquitting the accused, then only this Court can

interfere in the order of acquittal. Thus, she would pray for dismissal

of the appeal. To substantiate her submission, she has referred to

the judgments of Neeraj Dutta vs. State (NCT of Delhi) reported in

2023 (4) SCC 731, Rahil vs. State (NCT of Delhi) reported in 2025

SCC Online SC 1481, Madan Lal vs. State of Rajasthan reported

in 2025 (4) SCC 624, Neeraj Dutta vs. State (NCT of Delhi)

reported in 2023 (18) SCC 251, Pradeep Kumar vs. State of

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Chhattisgarh reported in 2023 (5) SCC 350.

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

material available on record.

12.From the submissions made by both the parties, this Court has to

examine whether the proof of demand which is sine qua non for the

offences to be established under Sections 7 and 13 of The Act, 1988

has been proved by the prosecution or not.

13.Learned Trial Court at paragraph 59 of its judgment has recorded

its finding that the prosecution has failed to prove demand as before

lodging of the FIR, no inquiry has been conducted with regard to the

allegations made in the complaint and correctness and genuineness

of Compact Disc has not been inquired by the Investigating Officer

Aditya Heeradhar (PW/14). The trial Court has also raised doubt

over the version of the complainant by referring to Ex. P/15 & P/16

which are part of case diary of Crime No. 87/11 and according to

which the complainant’s son was already released on bail on 25-04-

2011, as such, there is doubt about bribe money paid on 26-04-2011.

The trial Court has also observed that the complainant in paragraph

13 has admitted that his son was not sent to jail and his son (PW/10)

has also not confirmed about payment of illegal demand to the

accused.

14.To ascertain whether the finding recorded by the trial Court is

perverse or not, it is expedient for this Court to first extract the

findings recorded by the trial Court in paragraphs 52 to 54 and

thereafter, analysis whether it suffers from perversity or illegality, the

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findings are as under:

(a) the trial Court has recorded in paragraph 52 that the

Investigating Officer (PW/14) has stated that with regard to demand

of bribe which was recorded in the memory card and CD was

prepared which was seized vide Ex. P/5 and the transliteration has

been prepared in front of panch witnesses (Ex. P/18) with the

assistance of accused which is in three pages and in all the pages

he has put signature. The trial Court has also recorded its finding

that with the help of complainant, he has prepared transliteration

which is Ex. P/19 in two pages in which he has put his signature.

b) Similarly, with regard to discussion for demand and for calling the

complainant in the evening hours, the transliteration was prepared

vide Ex. P/20 in two pages in which he has put his signature. The

trial Court while recording its finding has also observed that when

the accused has assaulted his son causing seriousness to him, it is

not possible to record the conversation through mobile phone.

c) It has also recorded its finding that the accused in paragraph 11

has accepted that in the mobile phone there is no memory card and

there is no provision for downloading or voice recording, as such,

when there is no option for recording then preparation of CD is not

possible.

d) The trial Court recorded its finding that the CD has not been

examined by any expert to prove that the voice belongs to the

accused, as such, a serious doubt regarding demand has been

raised. The trial Court recorded its finding that the Investigating

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Officer has admitted in paragraph 24 that he has not heard the CD

which proves that the CD has not been heard by the trap team.

e) The trial Court recorded its finding for acquitting the accused that

the Dy. Superintendent of Police who has heard the CD has not

been examined.

f) The trial Court has taken into consideration that from perusal of

Ex. D/8, D/9 and D/10 which are the computer generated customer

profile record, application form of Virambai and Copy of Adhar Card

and recorded its finding that whether at the time of incident the

mobile phone was active or not and accordingly it has held that

demand has not been proved.

15.These findings are contrary to the evidence and law as the trial

Court has created doubt over the authenticity of Compact Disc which

has been prepared from the memory card of the complainant and

seized by the prosecution (Ex. P/5) as the complainant (PW/3) in his

evidence in paragraph 2 has clearly stated that whatever the

discussion between Station In-charge and himself is recorded in the

mobile phone by his son which he has taken to Anti Corruption

Bureau for lodging the report and the CD and memory card were

seized by the Anti Corruption Bureau as Ex. P/5. The said witness

was extensively cross-examined and in the cross-examination he

has denied that whatever talks taken place between him and the

accused have not been recorded. The witness has also identified the

accused and denied that the accused has never demanded money

from him. He also denied that he has not seen that his son is

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recording the voice. The trial Court while exhibiting Ex. P/18 to P/20

has stated that in the transliteration he has put his signature and the

trial Court while recording the evidence of the complainant has made

observation that the witness has stated about the contents of the

evidence made in the Ex. P/18 to P/20 as the witness is illiterate.

16.Thus, from the evidence brought on record, it is quite vivid that

memory card and Compact Disc were seized from the complainant

itself vide Ex. P/5, therefore, finding recorded by the learned trial

Court that due to non-examination of Dy. Superintendent of Police

who has directed the Investigating Officer to investigate or in

absence of any certificate with regard to the correctness and

genuineness of compact disc which is a mandatory provision has not

been followed goes against the prosecution, is misconceived and

contrary to the judgment passed by the three judges Bench of

Hon’ble Supreme Court in case of Arjun Panditrao Khotkar Vs.

Kailash Kushanrao Gorantyal and Others reported in 2020 (7)

SCC 1 wherein the Hon’ble Supreme Court has held that required

certificate under Section 65B(4) of the Indian Evidence Act, 1872 (for

short “the Act of 1872”) is unnecessary if the original document itself

is produced and this can be done by the owner of a laptop,

computer, computer tablet or even a mobile phone, by stepping into

the witness box and proving that the device concerned which the

original information is first stored, is owned and or operated by him.

The Hon’ble Supreme Court in paragraphs 32 to 35 has held as

under:

“32. Coming back to Section 65-B of the Indian Evidence Act,

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sub-section (1) needs to be analyzed. The sub-section begins

with a non- obstante clause, and then goes on to mention

information contained in an electronic record produced by a

computer, which is, by a deeming fiction, then made a

“document”. This deeming fiction only takes effect if the further

conditions mentioned in the Section are satisfied in relation to

both the information and the computer in question; and if such

conditions are met, the “document” shall then be admissible in

any proceedings. The words “…without further proof or

production of the original…” make it clear that once the deeming

fiction is given effect by the fulfillment of the conditions

mentioned in the Section, the “deemed document” now

becomes admissible in evidence without further proof or

production of the original as evidence of any contents of the

original, or of any fact stated therein of which direct evidence

would be admissible.

33. The non-obstante clause in sub-section (1) makes it clear

that when it comes to information contained in an electronic

record, admissibility and proof thereof must follow the drill of

Section 65B, which is a special provision in this behalf -

Sections 62 to 65 being irrelevant for this purpose. However,

Section 65B(1) clearly differentiates between the “original”

document - which would be the original “electronic record”

contained in the “computer” in which the original information is

first stored - and the computer output containing such

information, which then may be treated as evidence of the

contents of the “original” document. All this necessarily shows

that Section 65B differentiates between the original information

contained in the “computer” itself and copies made therefrom –

the former being primary evidence, and the latter being

secondary evidence.

34. Quite obviously, the requisite certificate in sub-section (4) is

unnecessary if the original document itself is produced. This can

be done by the owner of a laptop computer, a computer tablet or

even a mobile phone, by stepping into the witness box and

proving that the concerned device, on which the original

information is first stored, is owned and/or operated by him. In

cases where “the computer”, as defined, happens to be a part of

a “computer system” or “computer network” (as defined in the

Information Technology Act, 2000) and it becomes impossible to

physically bring such network or system to the Court, then the

only means of proving information contained in such electronic

record can be in accordance with Section 65B(1), together with

the requisite certificate under Section 65B(4). This being the

case, it is necessary to clarify what is contained in the last

sentence in paragraph 24 of Anvar P.V. (supra) which reads as

“…if an electronic record as such is used as primary evidence

under Section 62 of the Evidence Act…”. This may more

appropriately be read without the words “under Section 62 of the

Evidence Act,…”. With this minor clarification, the law stated in

paragraph 24 of Anvar P.V. (supra) does not need to be

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revisited.

35. In fact, in Vikram Singh and Anr. v. State of Punjab and Anr.

(2017) 8 SCC 518, a three-Judge Bench of this Court followed

the law in Anvar P.V. (supra), clearly stating that where primary

evidence in electronic form has been produced, no certificate

under Section 65B would be necessary. This was so stated as

follows:

“25. The learned counsel contended that the tape- recorded

conversation has been relied on without there being any

certificate under Section 65-B of the Evidence Act, 1872. It

was contended that audio tapes are recorded on magnetic

media, the same could be established through a certificate

under Section 65-B and in the absence of the certificate, the

document which constitutes electronic record, cannot be

deemed to be a valid evidence and has to be ignored from

consideration. Reliance has been placed by the learned

counsel on the judgment of this Court in Anvar P.V. v. P.K.

Basheer. The conversation on the landline phone of the

complainant situate in a shop was recorded by the

complainant. The same cassette containing conversation by

which ransom call was made on the landline phone was

handed over by the complainant in original to the police.

This Court in its judgment dated 25-1-2010 has referred to

the aforesaid fact and has noted the said fact to the

following effect:

“5. The cassette on which the conversations had been

recorded on the landline was handed over by Ravi Verma to

SI Jiwan Kumar and on a replay of the tape, the

conversation was clearly audible and was heard by the

police.”

26. The tape-recorded conversation was not secondary

evidence which required certificate under Section 65-B,

since it was the original cassette by which ransom call was

tape-recorded, there cannot be any dispute that for

admission of secondary evidence of electronic record a

certificate as contemplated by Section 65-B is a mandatory

condition.”

17.Thus, it is quite vivid that the prosecution is able to prove the

demand by examining the complainant and Compact Disc and

memory card. In the present case there are circumstantial evidence

also available i.e. testimony of a reliable independent witness (panch

witness) who overheard the demand, testimony of the complainant,

Phenolphthalein test (hand-wash or pocket-wash test) and unusual

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conduct of the accused. The panch witness Vedram Sinha (PW/11)

has stated that after reaching house of the accused, the complainant

has called the accused, then the accused came out from the house

then the complainant has told the accused that he has brought the

money which he has told and then he has given the bribe money to

the accused. Thereafter, the complainant gave him hint and then the

witness has caught hand, thereafter, Inspector Heeradhar and R.K.

Sharma have caught hold the accused and other member of the trap

team also reached there. The witness has also told that when he

caught hold the accused, then he had thrown the money in front of

Baramda (courtyard), then Inspector Heeradhar asked him to

complete the Phenolphthalein test and he completed the

proceedings and when he has washed the hand of the accused by

sodium carbonate solution, it has become pink which has been kept

in clean glass bottle. He has also stated that the other panch witness

count the bribe money seized from the courtyard and number was

tallied and it was found that the notes are the same. He has also

dipped the notes in sodium Carbonate solution and the colour of the

water become pink. The witness was cross-examined, but nothing

was brought on record to dilute the evidence with regard to hearing

of the conversation between the complainant and the accused. On

the contrary, the witness has stated in paragraph 21 that he was

having 10 steps distance from the accused and denied that he was

20 meters away from the house of the accused and also denied that

the complainant has intimated him after throwing the bribe money

and also denied that the complainant after touching bribe money in

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the hands of accused has thrown the money in the field and also

denied that he has not seen that the accused has kept the money.

18.Narayan Nimje (PW/2) has stated in his examination-in-chief that the

complainant after giving the bribe notes to the accused he came out

from the house and hinted them, then along with other members of

trap team, they reached the house of the accused and caught hold

him. The accused seeing the members of the trap team had thrown

the money in the courtyard. This witness was extensively cross-

examined but nothing was brought on record to dilute this portion of

the evidence. On the contrary, in the cross-examination he has

supported the Phenolphthalein test. The witness in his cross-

examination in paragraph 26 has denied that he has not seen the

complainant entering into the house of the accused, but admitted

that since he was sending to the Police Station gate, therefore, he is

not aware about the discussion or transaction between the

complainant and the accused. In paragraph 27 he has stated that he

has seen the money throwing in the courtyard of the accused and

also admitted that when they have entered in the house of the

accused, he has not seen any bribe money with the accused.

19.The panch witness R.D. Sahu (PW/5) has stated in his examination-

in-chief that he was sitting in the rest house with DSP Karosiya and

after sometime when Mr. Karosiya moved from there, he followed

them and when he reached the accused house then he has seen

that the Police Station In-charge has caught hold the accused in the

courtyard and his waist was caught hold by Vedram Sinha (PW/11)

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Constable and one hand was kept by Aditya Heeradhar, then

Vedram Sinha told him that the complainant has given money to the

accused which he has thrown in the courtyard and S.P. Karosiya has

told him to count and tally the numbers of the notes and denied that

from the place where he was sitting, he is unable to see the house of

the accused, but admitted what proceedings are going on, has not

been seen by him.

20.From the above stated evidence placed on record by the

prosecution, it is quite vivid that the finding recorded by the learned

trial Court in paragraphs 62 to 68 with regard to proving of the

demand by panch witnesses has not been proved, is contrary to the

evidence. The witnesses as detailed above by this Court, particularly

Vedram Sinha (PW/11) who was available at the place of occurrence

has categorically stated about the payment of bribe money to the

accused by the complainant. Similarly, for disbelieving the statement

of Narayan Nimje (PW/2) the finding of the trial Court in paragraph

62 has taken into consideration the voice record and its

transliteration of the complainant and the accused which is not at all

relevant to assessed whether the panch witnesses have heard the

demand or payment of bribe money. In fact that witness came

subsequently into the place of occurrence, as such, he has rightly

taken a stand that he cannot hear the talks at the place of

occurrence.

21.Again the trial Court while disbelieving the statement of R.D. Sahu

(PW/5) has drawn undue inference by considering the evidence that

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he has not seen the negotiation between the complainant and the

accused. In fact, there was no such evidence brought on record by

the prosecution to this effect. The panch witness has given his

evidence with regard to the bribe notes seized from the place of

occurrence only. Thereafter, the learned trial Court in paragraph 70

has recorded its finding that neither the complainant nor other

witnesses have given the information with regard to mobile numbers

and there was no option of recording in the mobile which has been

affirmed by the complainant witness, therefore, it has raised doubt

over the incident about demand of bribe money by the accused. This

reasoning given by the trial Court is unsustainable as the memory

card and Compact Disc have been seized by the prosecution and

though the son of the complainant, Ayodhya Prasad (PW/10) was

turned hostile by the prosecution still he has supported the case of

the prosecution as this witness has admitted in the cross-

examination that in the mobile kept by his father there is no memory

card or downloading facilities, but the trial Court failed to consider

that the evidence of the complainant (PW/3) who has stated that the

voice of negotiation between the complainant and the accused has

been recorded in the mobile by his son which he has submitted

before the Anti Corruption Bureau Office Bilaspur. The trial Court

unnecessarily struggled to record a finding that the voice recording is

dubious whereas there is clinching evidence brought on record by

the prosecution regarding demand made by the accused which has

been recorded in the mobile phone by the son of the complainant.

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22.The trial Court though recorded its finding in paragraph 79 that the

incident has been seen by panch witness Vedram Sinha (PW/11)

and complainant (PW/3) except that no other witness has seen the

incident taken place in the house of the accused, still erred in

recording its finding that no demand has been proved by the

prosecution.

23.The trial Court in paragraph 92 has also recorded its finding that no

expert has examined the CD and cassettes to prove that the voice

belongs to the accused, therefore, it is a weak evidence and cannot

be relied upon. This finding is illegal as there is no challenge or

denial about the voice and in absence of any denial a conversation

recorded in a CD to be admissible, if three contingencies are

available i.e. (1) the conversation must be relevant, (2) the voice

must be identified, and (3) the accuracy of the recording must be

proved to eliminate possibilities of tampering. The accused has not

denied or raised any objection as in question Nos. 43, 108, 115, 116

and 117 while examining under Section 313 of Cr.P.C., a specific

question was raised with regard to audio recording and seizure of

two compact discs, he has simply denied the same, but has not

denied his voice. As such, the tape record conversation is

admissible as held by the Hon’ble Supreme Court in case of R. M.

Malkani vs State Of Maharashtra reported in 1973 (1) SCC 471,

wherein the Hon’ble Supreme Court in paragraph 23 has held as

under:

“23. Tape recorded conversation is admissible provided first the

conversation is relevant to the matters in issue; secondly, there

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is identification of the voice'; and. thirdly, the accuracy of the

tape recorded conversation is proved by eliminating the

possibility of erasing the tape record. A contemporaneous tape

record of a relevant conversation is a relevant fact and is

admissible under section 8 of the Evidence Act. It is res gestae.

It is also comparable to a photograph of a relevant incident. The

tape recorded conversation is therefore a relevant fact and is

admissible under section 7 of the Evidence Act. The

conversation between Dr. Motwani and the appellant in the

present case is relevant to the matter in issue. There is no

dispute about the identification of the voices. There is no

controversy about any portion of the conversation being erased

or mutilated. The appellant was given full opportunity to test the

genuineness of the tape recorded Conversation. The tape

recorded conversation is admissible in evidence.”

24.Thus, the learned trial Court has committed illegality in recording its

finding that the prosecution is unable to prove the demand of bribe

beyond reasonable doubt or cogent evidence. The trial Court while

recording such finding has ignored the vital evidence as discussed

above and also ignored the law laid down by the three judges Bench

of the Hon’ble Supreme Court in case of Neeraj Dutta vs. State

(Government of NCT of Delhi) reported in 2023 (4) SCC 731

wherein the Hon’ble Supreme has summarized the principle in

paragraphs 88 to 88.8 as under:

“88. What emerges from the aforesaid discussion is summarised

as under:

88.1 (a) Proof of demand and acceptance of illegal gratification

by a public servant as a fact in issue by the prosecution is a sine

qua non in order to establish the guilt of the accused public

servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

88.2 (b) In order to bring home the guilt of the accused, the

prosecution has to first prove the demand of illegal gratification

and the subsequent acceptance as a matter of fact. This fact in

issue can be proved either by direct evidence which can be in

the nature of oral evidence or documentary evidence.

88.3 (c) Further, the fact in issue, namely, the proof of demand

and acceptance of illegal gratification can also be proved by

circumstantial evidence in the absence of direct oral and

documentary evidence.

88.4 (d) In order to prove the fact in issue, namely, the demand

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and acceptance of Criminal Appeal No.1669 of 2009 illegal

gratification by the public servant, the following aspects have to

be borne in mind:

(i) if there is an offer to pay by the bribe giver without there

being any demand from the public servant and the latter

simply accepts the offer and receives the illegal gratification,

it is a case of acceptance as per Section 7 of the Act. In

such a case, there need not be a prior demand by the public

servant.

(ii) On the other hand, if the public servant makes a demand

and the bribe giver accepts the demand and tenders the

demanded gratification which in turn is received by the

public servant, it is a case of obtainment. In the case of

obtainment, the prior demand for illegal gratification

emanates from the public servant. This is an offence under

Section 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe

giver and the demand by the public servant respectively

have to be proved by the prosecution as a fact in issue. In

other words, mere acceptance or receipt of an illegal

gratification without anything more would not make it an

offence under Section 7 or Section 13(1)(d), (i) and (ii)

respectively of the Act. Therefore, under Section 7 of the

Act, in order to bring home the offence, there must be an

offer which emanates from the bribe giver which is accepted

by the public servant which would make it an offence.

Similarly, a prior demand by the public servant when

accepted by the bribe giver and in turn there is Criminal

Appeal No.1669 of 2009 a payment made which is received

by the public servant, would be an offence of obtainment

under Section 13(1)(d) and (i) and (ii) of the Act.

88.5 (e) The presumption of fact with regard to the demand and

acceptance or obtainment of an illegal gratification may be

made by a court of law by way of an inference only when the

foundational facts have been proved by relevant oral and

documentary evidence and not in the absence thereof. On the

basis of the material on record, the Court has the discretion to

raise a presumption of fact while considering whether the fact of

demand has been proved by the prosecution or not. Of course,

a presumption of fact is subject to rebuttal by the accused and in

the absence of rebuttal presumption stands.

88.6 (f) In the event the complainant turns ‘hostile’, or has died

or is unavailable to let in his evidence during trial, demand of

illegal gratification can be proved by letting in the evidence of

any other witness who can again let in evidence, either orally or

by documentary evidence or the prosecution can prove the case

by circumstantial evidence. The trial does not abate nor does it

result in an order of acquittal of the accused public servant.

88.7 (g) In so far as Section 7 of the Act is concerned, on the

proof of the facts in issue, Section 20 mandates the court to

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raise a presumption that the illegal gratification was for the

purpose of a motive or reward as mentioned in the said Section.

The said presumption has to be raised by the court as a legal

presumption or a presumption in law. Of course, the said

presumption is also subject to rebuttal. Section 20 does not

apply to Section 13(1)(d) (i) and (ii) of the Act.

88.8 (h) We clarify that the presumption in law under Section 20

of the Act is distinct from presumption of fact referred to above

in sub-para 88.5(e), above, as the former is a mandatory

presumption while the latter is discretionary in nature.”

25.The Hon’ble Supreme Court in case of Neeraj Dutta vs. State

(Government of NCT of Delhi) reported in 2023 (18) SCC 251

again held that demand and acceptance of illegal gratification can be

proved by circumstantial evidence also. The Hon’ble Supreme in

paragraphs 21 and 22 has held as under:

“20. In view of what is laid down by the Constitution Bench, in a

given case, the demand and acceptance of illegal gratification by

a public servant can be proved by circumstantial evidence in the

absence of direct oral or documentary evidence. While

answering the referred question, the Constitution Bench has

observed that it is permissible to draw an inferential deduction of

culpability and/or guilt of the public servant for the offences

punishable under Sections 7 and 13(1)(d) read with Section

13(2) of the PC Act. The conclusion is that in absence of direct

evidence, the demand and/or acceptance can always be proved

by other evidence such as circumstantial evidence.

21. The allegation of demand of gratification and acceptance

made by a public servant has to be established beyond a

reasonable doubt. The decision of the Constitution Bench does

not dilute this elementary requirement of proof beyond a

reasonable doubt. The Constitution Bench was dealing with the

issue of the modes by which the demand can be proved. The

Constitution Bench has laid down that the proof need not be only

by direct oral or documentary evidence, but it can be by way of

other evidence including circumstantial evidence. When reliance

is placed on circumstantial evidence to prove the demand for

gratification, the prosecution must establish each and every

circumstance from which the prosecution wants the Court to

draw a conclusion of guilt. The facts so established must be

consistent with only one hypothesis that there was a demand

made for gratification by the accused. Therefore, in this case, we

will have to examine whether there is any direct evidence of

demand. If we come to a conclusion that there is no direct

evidence of demand, this Court will have to consider whether

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there is any circumstantial evidence to prove the demand.”

26.From the above discussion and considering the fact that the

prosecution has not only proved the demand and acceptance from

direct evidence, but also from circumstantial evidence. The learned

trial Court has ignored the vital evidence of complainant, production

of CD and memory card by the complainant, wrongly applying the

provisions of Section 65-B(4) of the Act of 1872, committed illegality

in applying the law, recorded patent perversity about ignoring the

proof of demand by one of the panch witnesses has proved the

demand. There is no defect in phenolphthalein test conducted by the

prosecution, as such, no two reasonable views are possible and only

the view consistent with the guilt of the accused is possible from the

evidence available on record, therefore, the Court can very well

interfere in the findings of the trial Court acquitting the accused by

reversing the findings for conviction of the accused. Thus,

submission made by the learned counsel for the appellant that if two

views can be taken then view which is more favourable to the

accused should be considered by the Court and should not interfere

in the finding of the acquittal deserves to be rejected, and

accordingly it is rejected.

27.The Hon’ble Supreme Court in case of Babu Sahebagouda

Rudragoudar and others v. State of Karnataka reported in 2024

(8) SCC 149 has held in which circumstances the findings can be

reversed, in paragraphs 41 and 42 has held as under:

“41. Thus, it is beyond the pale of doubt that the scope of

interference by an appellate Court for reversing the judgment of

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acquittal recorded by the trial Court in favour of the accused

has to be exercised within the four corners of the following

principles:-

41.1 That the judgment of acquittal suffers from patent

perversity;

41.2 That the same is based on a misreading/omission to

consider material evidence on record;

41.3 That no two reasonable views are possible and only the

view consistent with the guilt of the accused is possible from

the evidence available on record.

42. The appellate Court, in order to interfere with the judgment

of acquittal would have to record pertinent findings on the

above factors if it is inclined to reverse the judgment of acquittal

rendered by the trial Court.”

28.Thus, this Court in exercise of power conferred under Section 386 of

Cr.P.C. (Section 427 in the Bharatiya Nagarik Suraksha Sanhita

(BNSS) can very well interfere in the findings recorded by the trial

Court and can reverse such findings by convicting the accused for

the commission of offence under Section 7, 13(1)(d) and 13(2) of the

Act, 1988.

29.Therefore, as per Section 13(2) of the Act, 1988 as stood on the date

of incident prior to its amendment on 12.01.2014, the public servant

who commits criminal misconduct shall be punishable with

imprisonment for a term which shall not be less than 1 year, but

which may extend to 7 years and shall also be liable to fine.

Accordingly, looking to the period of incident, I am of the view that

the respondent deserves to undergo minimum sentence of 1 year

rigorous imprisonment with fine amount of Rs. 25,000/- after getting

remission for the period he remained in jail from 05-05-2011 to 18-

07-2011. The appellant shall surrender before the trial Court within

three months to serve out the remaining part of the jail sentence.

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Ordered accordingly.

30.Consequently, the acquittal appeal is allowed and the judgment of

acquittal dated 30-6-2018 passed by the learned Special Judge

under Prevention of Corruption Act, Ambikapur, District Surguja (CG)

is set aside.

Sd/-

(Narendra Kumar Vyas)

Judge

Raju