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IN THE COURT OF SPECIAL JUDGE, ASSAM, GUWAHATI Present : Sri A. Bhattacharyya, AJS, Special Judge, Assam, Guwahati.

SPECIAL CASE NO. 8/2013(Arising out of Dibrugarh PS Case No. 284/2011

u/s384 IPC r/w Sec. 7 of Prevention of Corruption Act, 1988)

STATE OF ASSAMVS.

Sri Bhabani Gogoi................. Accused Person

Date of hearing : 28.05.2014, 19.06.2014, 18.07.2014, 28.11.2014, 18.12.2014, 03.01.2015,

29.01.2015, 01.07.2015.

Date of statement of accused : 01.07.2015

Date of argument : 16.07.2015 Date of Judgment : 27.07.2015

Result : Acquittal

Advocate for prosecution : Smti. Nabasmita Gogoi Ld. Addl. Special P.P. for the State

Advocate for accused : Sri H. K. Baruah & Sri D. Gogoi Ld. Advocates.

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J U D G M E N T

1. Sri Anil Kumar Poddar vide an ejhar dtd. 21.04.2011 states before the then Dy. Commissioner, Dibrugarh that on 21.04.2011 at about 1.10 PM he went to the office of Sub-Registrar, Dibrugarh with an application for certified copy of a sale deed, but one of the staff of the aforesaid office with the support of another staff asked him to pay Rs. 200/- as bribe. Thus he would give two notes of 100 rupee each bearing numbers 9ND 650629 and 8TV 136772 to the said staff with due information to him so that necessary action can be taken.

2. The Dibrugarh police on the basis of the aforesaid ejhar registered a case and took up the investigation. At the conclusion of investigation the Dibrugarh police station laid the cahrgesheet u/s 384 IPC alongwith Section 7 of PC Act.

3. On the appearance of the accused the charge u/s 7 of PC Act was framed against the accused. The charge so framed, was readover and explained to the accused to which he pleaded not guilty and claimed to be tried.

4. During trial the prosecution side after examining as many as 10 PWs closed their side. Statement of accused is recorded u/s 313 CrPC. The accused did not adduce the evidence. I heard the arguments of the case from both the parties.

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5. NOW THE POINT FOR DETERMINATION IN THIS

CASE WILL BE :

As to whether the accused named above being public servant had demanded a sum of Rs. 200/- for supplying certified copy of a sale deed from the complainant Anil Kr. Poddar and he accepted the same which is punishable section 7 of PC Act or not ?

6. DECISION AND REASON THEREOF :-

Herein this case the prosecution of the accused is launched u/s 7 of PC Act. The essential ingredients of the said section have been narrated by the Hon'ble Apex Court of the country in the following manner in a decided case law i.e. A. Subair v. State of Kerala (2209) 6 SCC 587. The relevant para of the aforesaid judicial authority is

reproduced herein below- “13. The essential ingredients

of Section 7 are : (i) that the person accepting the

gratification should be a public servant; (ii) that he

should accept the gratification for himself and the

gratification should be as a motive or reward for doing

or forbearing to do any official act or for showing or

forbearing to show, in the exercise of his official

function, favour or disfavour to any person.”

7. Now it is be ascertained as to whether the PWs have recorded success to generate the ingredients of section 7

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required for the basis of conviction of the accused or not ? Obviously to address the aforesaid aspect perusal of entire evidences on record is necessary. So let us have a look at the entire evidences on record.

8. PW-1 Sri Anil Kumar Poddar being the most material witness during trial and in his examination in chief states as follows - On 21.04.2011 he went to the office of the Sub Register, Dibrugarh to obtain certified copy of sale deed. He has already applied for the certified copy of sale deed and on that day he went there to receive the same. Then one person of the office demanded Rs. 200/- as bribe. Lateron he came to know that the name of the person as Bhabani Gogoi. He has told Bhabani Gogoi that he was arranging the money. Thereafter he went to the DC, Dibrugarh and informed the DC in writing about the demand of bribe of Rs. 200/- by the staff of the office of the Sub Registrar, Dibrugarh and also had written the numbers of denomination of 2 hundred rupee currency notes bearing No. 9ND 650629 and 8TV 136772 which he is going to be given to the accused person and he prayed to Dy. Commissioner, Dibrugarh for taking necessary action. In his complain petition he also mentioned the cell phone bearing No. 9954123015 which is given by the accused to contact. His complain was forwarded by the DC to EAC Tarali Das, and then the EAC Tarali Das forwarded his complain to the i/c Milan Naga Police Out Post to take necessary action. Ext. 1 is his complain to the DC, Dibrugarh and Ext. 1(1) is his

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signature. Ext. 1(1) is the endorsement of the DC to Executive Magistrate Tarali Das and Ext. 1(3) is the endorsement of the Executive Magistrate to i/c Milannagar Outpost. Thereafter he came back to the office of the Sub Registrar, Dibrugarh and he was followed by the Executive Magistrate Tarali Das and one Addl. SP (Security) Sri Subod Sonowal accompanied by the police personals, thereafter he entered into the office of Sub Registrar and gave one brown colour envelope containing 2 Nos of hundred rupee currency notes to the accused Bhabani Gogoi. Accused Bhabani Gogoi accepted the said envelope containing the bribe of Rs. 200/-. At that time Executive Magistrate and Police Officer were waiting out side. Immediately after handing over the bribe amount to the accused the Police Officer along with the Executive Magistrate entered into the office room. At that stage the witness has stated that on that day itself he went to apply for certified copy of the sale deed. Thereafter on being asked by the police officer and Executive Magistrate the accused, Bhabani Gogoi has brought out the brown colour envelope containing 2 Nos of hundred rupee currency notes. Thereafter police officer i/c Milannagar R. Rajkhowa seized the 2 Nos of hundred rupee currency notes from the possession of accused Bhabani Gogoi in presence of the Addl. SP (Security) and the Executive Magistrate. Ext. 2 is the seizure list and Ext. 2(1) is his signature. At the time of seizure apart from the Police Officer and the Executive Magistrate, there were other witnesses also present and he

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know one Ratul Gohain who also put his signature in the seizure list vide Ext. 2(2), he knows his signature as he is also a staff of NETV and his colleague. The 2 Nos of hundred rupee currency notes which he has given to the accused in a brown colour envelope as bribe were seized by the police officer vide seizure list Ext. 2. M Ext. 1 is the said brown colour envelope. M Exts. 2 & 3 are the said 2 Nos of hundred rupee currency notes. Police has recorded his statement. On that day after the incident police has arrested the accused. His complain dtd. 21.4.11 filed before the DC, Dibrugarh has been treated as FIR by the police on which the case was registered.

9. During cross-examination the PW-1 admitted that on that day after entering into the office room of the office of the Sub-Registrar he asked one of the staff where to apply for certified copy, then the said staff shown him to approach Bhabani Gogoi.

10. From the testimonies of the PW-1 it is revealed that on the date of incident he went to the office in question for applying certified copy of a sale deed, but in the ejhar so also during his examination-in-chief the PW-1 stated that he had already applied for the certified copy of sale deed in question. So far demand of bribe so also its acceptance are concerned it is further revealed that the PW-1 implicated the accused named above.

11. PW-2 Sri Sadananda Gogoi states during trial and in his examination in chief as follows - On 21.04.2011 he was

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serving as Gr-IV employee of the office of the Sr. Sub Register, Dibrugarh. On that day at around 2.30 / 3 PM one Executive Magistrate Tarali Das, DSP and Media Persons came to his office and the Executive Magistrate Tarali Das asked who is Bhabani Gogoi and on being asked Bhabani Gogoi identified himself. The Executive Magistrate Tarali Das stated to Bhabani Gogoi that he has taken bribe form Anil Poddar, then Bhabani Gogoi replied that he has not taken any bribe, then Anil Poddar showed the Executive Magistrate one brown colour envelope which is on the table where the accused used to sit on that day. The Executive Magistrate has checked the brown colour envelope and found two 100 rupee denomination currency note in the said envelope. Thereafter on being asked by the police he put his signatures in Ext. 2 wherein Ext. 2(3) is his signature. Today he can not recognize the M Exts. 2 & 3. On that day police arrested the accused Bhabani Gogoi.

12. During cross-examination the PW-2 stated that he does not know what was written in Ext. 2 and he has put his signature only on being asked by the police. At the time when Anil Poddar pointed out the envelope it was closed and he can not say whether the M Exts. 2 & 3 were inside the said envelope on that day. Further the PW-2 stated during cross that Bhabani Gogoi who is a Grade-IV employee did not have table of his own at the office. On the table where from the envelope was recovered was generally Extra Writer Depali Bonja sits. On the date of incident before the incident

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he had seen Anil Kr. Poddar coming to their office, but he had not seen him talking with Bhabani Gogoi.

13. From the testimonies of PW-2 it is revealed that the envelope containing the tainted notes were recovered from the table of Dipali Bonja. Further it is revealed that he put his signature in the seizure list under Ext. 2 on bring asked by the police and he did not see the contents of the envelope. In the result it is finally revealed that the PW-2 has not at all corroborated the PW-1.

14. PW-3 Mrs. Tarali Das during trial and in her examination in chief states as follows - On 21.04.2011 she was serving as Extra Asstt. Commissioner at Dibrugarh. On that day the then Dy. Commissioner of Dibrugarh Sri K. K. Divedi called her to his chamber and told her about one complain dtd. 21.4.2011 submitted by one Anil Poddar interalia alleging demand of money by one staff of his office. In the said complain the DC has endorsed the same to her to take necessary action. Ext. 1 is the complain and Ext. 1(2) is the said endorsement. At that time the then Dy. Commissioner telephonically informed the Superintendent of Police and asked her to depute one police officer of the rank of DSP and she also endorsed the said complain to I/C Milan Nagar Outpost for taking necessary action as per law. Ext. 1(3) is her endorsement whereas Ext. 1(4) is her signature. Thereafter one DSP with the title Sonowal came to the DC office and also one police officer with the title of Rajkuwa came from Milan Nagar Out Post. Thereafter she along with

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Anil Poddar and the police officers went to the office of the Sub Registrar where Anil Poddar met accused Babani Gogoi and on being asked by Anil Poddar accused Bhabani Gogoi stated that the envelope containing the amount is not with him and it is there where it was. Thereafter Bhabani Gogoi led them to the table where the envelope was kept. Thereafter police seized the brown colour envelope along with two 100 rupee denominations in her presence. Ext. 2 is the seizure list where Ext. 2(4) is her signature with remark “cash Rs. 200 recovered from Bhabani Gogoi in front of her”. The seizure list contains the denomination number of the two 100 rupee notes which were seized by the police. The said denomination numbers tallies with the M Exts. 2 & 3 which are seen by her today in the court. In the complain letter issued to the Dy. Commissioner by Anil Poddar (Ext.1) the same denomination numbers are mentioned by the complainant. After the seizure the police has taken away the accused Bhabani Gogoi along with the seized currency notes.

15. During cross-examination being the most material witness i.e. the Executive Magistrate states that at the time when Anil Kr. Poddar asked Bhabani Gogoi as to where he has kept the money Bhabani Gogoi told that the money was not with him and it was there where it was kept. Further she admitted during cross-examination that she had not seen any application form for applying certified copy of sale deed. When the M Ext 1 one brown envelope was seized it was

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closed, but not pasted with gum and when the brown envelope was in the closed position the contents of the same was not visible from outside. She had not enquired as to whom the table was officially allotted where from the brown envelope was recovered. She had not heard the demand of bribe by the accused Bhabani Gogoi from the complainant Anil Kr. Poddar. Before they entered into the office of Sub-Registrar the brown envelope containing the bribe amount was already their. Also she had not seen Anil Kr. Poddar giving the bribe amount to the accused.

16. From the testimonies of the PW-3 it is revealed that the envelope containing the tainted notes was not recovered from the possession of the accused and it was recovered from a table.

17. PW-4 Sri Manik Das during trial and in his examination in chief states as follows - On 21.04.2011 he was serving as Computer Operator in the office of the Sr. Sub- Registrar, Dibrugarh. On that day one Executive Magistrate Tarali Das along with police officials came to our office and recovered one brown envelope from the table of Extra Writer Dipali Banja where Bhabani Gogoi was standing. Police asked him to sign as a witness regarding recovery of envelope in the table and he has put his signature in the seizure list vide Ext. 2(5). Accused Bhabani Gogoi is present in the court today. After the seizure police has taken away Bhabani Gogoi along with the envelope.

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18. During cross-examination the witness stated that he does not know who has kept the envelope in the said table and to whom the said envelope was given. He has put his signature in the Ext. 2 as he was told to put his signature as witness regarding recovery of an envelope. Also the PW-4 stated during cross examination that at the time of taking his signature in Ext. 2 he has not seen the envelope.

19. On perusal of the testimonies of PW-4 it is revealed that being the witness of the seizure list he has not supported the story of the prosecution as regards the seizure of the envelope containing the tainted notes.

20. PW-5 Sri Bhupen Patowary during trial and in his examination in chief states as follows - On 21.04.2011 he was serving as Senior Sub Register, Dibrugarh. He know accused Bhabani Gogoi who was serving as Night Chowkidar. As during that period there was shortage of staff in our office accused Bhabani Gogoi also used to work during day time as Peon. On the day of incident on 21.4.11 he was in his office chamber and on that day at around 2 / 2.30 PM one Addl. SP Sri Sobud Sonowal, one Executive Magistrate Mrs. Trali Das and some staffs of NE TV Sri Anil Poddar entered into their office and thereafter he came out from his chamber and heard about taking of Rs. 200/- by accused Bhabani Gogoi. He has also heard from Anil Poddar that Rs. 200/- was recovered in an envelope from the table of Extra Writer. After the incident Dy. Registrar J. Ahmed informed the matter to the Dy. Commissioner, Dibrugarh on 25.4.11.

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21. During cross-examination the PW-5 stated that he had not personally seen the envelope containing Rs. 200/-, however, the said envelope was seized by the police.

22. PW-6 Sri Ratul Gohain during trial and in his examination in chief states as follows - On 21.04.2011 he alongwith Anil Poddar went to the office of the Sub Registrar, Dibrugarh. Anil Poddar went into the office of the Sub Registrar to obtain certified copy of sale deed. To obtain certified copy Anil Poddar talked with Bhabani Gogoi, and Anil Poddar told him that he has handed over one envelope containing Rs. 200/- to Bhabani Gogoi for the said certified copy. Then the matter was informed by Anil Poddar to the Dy. Commissioner, Dibrugarh. Accordingly one lady ADC and one Police Officer came to the office of the Sub Registrar and on searching by the ADC and Police Officer accused Bhabani Gogoi handed over the said envelope containing Rs. 200/- to the Police and ADC. Thereafter police seized the said envelope alongwith Rs. 200/- by preparing one seizure list Ext. 2 wherein Ext. 2 (2) is his signature. M Exts. 2 & 3 are the said 2 nos of hundred rupee currency note. Today he can not recognize the M Ext. 1 the brown colour envelope whether the same was seized on the date of incident or not. After the incident accused Bhabani Gogoi was arrested by the police.

23. During cross-examination the PW-6 stated that he had not seen Anil Kr. Poddar while giving the brown envelope to the accused Bhabani Gogoi.

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24. PW-7 Sri Ranjit Rajkhuwa during trial and in his examination in chief states as follows - On 21.04.2011 he was serving as i/c Milannagar Out Post. On that day S. K. Sonowal, Addl. S.P (security) informed him to come to the office of the Dy. Commissioner, Dibrugarh for an inquiry. Accordingly he reached there wherein he met Addl. SP (Security), Sri S.K. Sonowal, Executive Magistrate Tarali Das, Anil Poddar complainant, and PSO to the Addl. S.P, and thereafter they all went to the office of the Senor Sub Registrar which is situated back side of the DC office. Before proceeding to the office of the Senior Sub Registrar he was informed that one complain has been lodged by Anil Poddar before the DC regarding alleged demand of illegal gratification by one employee of the office of the Senior Sub Registrar. After reaching in the office of the Senior Sub Registrar complainant Anil Poddar has shown a person of the office of the Senior Sub Registrar and asked him to show the envelope containing the bribe amount which he has given to him, and thereafter the said person has produced the envelope and on being opened found 2 nos of hundred rupee denominations in the said envelope. The name of the employee from whose possession the envelope was recovered is Bhabani Gogoi. Thereafter he seized the said 2 nos of hundred rupee denominations. Ext. 2 is the said seizure list wherein Ext. 2(6) is his signature. The seizure was made in his presence and in presence of the witnesses namely Manik Das, Sadananda Gogoi, Tarali Das Executive

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Magistrate, S. K. Sonowal, Addl. S.P. (Security). M Exts. 2 & 3 are the said 2 nos of hundred rupee denomination notes and the numbers of which are Talleyed with the seizure list, however he could not ascertain today the brown envelope M Ext. 1. Thereafter after seizure of the envelope and the currency notes he has recorded the statement of the seizure witnesses on the spot and drew the scratch map. Ext. 3 is the said scratch map wherein Ext. 3(1) is his signature. Thereafter along with the seized articles the accused was brought to the Sadar Police Station and thereafter he returned to the out post. The Executive Magistrate Tarali Das forwarded the FIR to him i.e. I/C Milannagar Out Post to take necessary action and after receiving the FIR he made the GD entry No. 384 dtd. 21.4.11 and forwarded the same to the O/C, Dibrugarh Sadar PS for registering the case under proper section of law and he has taken up the pre steps of the case. Ext. 1(5) is his signature in the FIR and Ext. 1(4) is the endorsement of Executive Magistrate Tarali Das. After registration of the case he has arrested the accused at around 4 PM on 21.4.11 and on the next day produced the accused before the Ld. CJM, Dibrugarh. As the case was registered under the provisions of PC Act on 22.4.11 he has submitted a prayer before the SP, Dibrugarh to hand over the investigation of the case to a Gazetted Police Officer. Thereafter the investigation of this case was handed over to the DSP Nityananda Boragohain on 27.4.11. The seizure list along with the exhibits were shown to the Ld.

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CJM, Dibrugarh on 25.4.11 and he handed over the case diary on 30.4.11 to the O/C, Dibrugarh PS.

25. During cross examination the PW-7 stated that at the time of seizure of two 100 rupee notes alongwith the envelope he had found the same in the hands of accused.

26. Now on a minute perusal of the testimonies of the aforesaid witness alongwith the testimonies of PW-3 it appears that both the persons together entered into the place of occurrence, but their versions revealed from their testimonies has not supported each other as to the story of recovery of tainted notes in question.

27. PW-8 Sri Subod Kr. Sonowal during trial and in his examination in chief states as follows - On 21.04.2011 he was serving as Addl. SP (Security), Dibrugarh. On that day the then Dy. Commissioner, K. K. Dwevedi telephonically asked him to come to his office at around 2 PM. He went to his office, he instroduved him to one Anil Poddar and he was told that when Anil Poddar visited the office of the Sr. Sub-Registrar, Dibrugarh one employee of that office demanded gratification for issuing a certified copy of a deed, and I was asked by the Dy. Commissioner to take necessary action. Then he called i/c Milan Nagar Outpost S/I Ranjit Rajkhowa. In the meantime the then D.C. also asked one Executive Magistrate Smti. Tarali Das to accompany them. Thereafter they all i.e. SI Rajkhoway, EM Tarali Das, Anil Poddar and he went to the office of the Sr. Sub-Register, Dibrugarh. Then Anil Poddar went inside the office, they were waiting outside.

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After some time Anil Poddar come out of the office and informed them that the work has been done. They went inside and found the employee whom Anil Poddar identified as giving the money. They searched the body of the person, but did not find anything from the body. The person whose body was searched was Bhabani Gogoi. Anil Poddar then asked person as to what happened to the envelope that he has given to him. Bhabani Gogoi replied that he do not know what is inside the envelope and he has kept the same under a file and showed them the file. Then they say a brown envelop. Anil Poddar also identified the envelop. They opened the envelop and found 2 nos of 100 rupee Indian Currency notes. Bhabani Gogoi expressed his surprise when the currency notes were found from the envelop. Thereafter SI Rajkhowa seized the above currency notes in his presence and in presence of other witnesses. Ext. 2(7) is his signature. Accused also put his signature in the seizure list in his presence. Ext. 2(8) is the signature of accused Bhabani Gogoi. Thereafter accused was brought to the police station. After completion of the preliminary investigation by S/I Ranjit Rajkhowa the then Superintendent of Police, Dibrugarh endorsed the investigation of the case to N.N. Borgohain, DY. S.P. (HQ), Dibrugarh. Today in court he has seen the seized brown envelop and the 2 nos of 100 rupee currency notes. M Ext. 1 is the envelop and M Exts. 2 & 3 are the currency notes.

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28. During cross-examination the PW-8 stated that he had not enquired from the office of the Sub-Registrar as to in whose name the table was allotted where from the brown envelope was recovered. He also had not enquired about the file under which the envelope was recovered. He had also not enquired who dealt with the file. Further according to him (PW-8) accused had stated in his presence after recovery of the envelope that he was not aware about the contents of the envelope. Anil Kr. Poddar had applied for certified copy of sale deed and for that the accused demanded the money, however, he did not find any application for certified copy.

29. PW-9 Sri Nitul Kr. Baruah during trial and in his examination in chef states as follows - On 28th Sept, 2011 he was serving as Addl. Dy. Commissioner and i/c District Magistrate. During his stay in Dibrugarh as i/c District Magistrate he received a letter from the office of the Superintendent of Police, Dibrugarh dtd. 3.9.2011 praying for granting prosecution sanction against the accused Bhabani Gogoi in connection with Dibrugarh PS case No. 284/2011 u/s 384 IPC r/w sec. 7 of PC Act, 1988. After going through the police report and satisfying himself with the report he accorded prosecution sanction against accused Bhabani Gogoi on 28th Sept, 2011 and sent copy of his order to the Superintendent of Police, Dibrugarh on 28th

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Sept,2011. Ext. 4 is the prosecution sanction order wherein

Ext. 4(1) is his signature.30. PW-10 Sri Nityananda Borgohain, who completed the

investigation of this case and during trail and in his examination in chief states as follows – On 23.07.2011 while he was working in the capacity of DSP(HQ) at Dibrugarh he was entrusted with the investigation of this case. On being entrusted he perused the CD and on perusal of the CD he found that the investigation has almost been completed by his previous I/O and the case was pending for obtaining prosecution sanction. During his tenure of investigation he obtained the prosecution sanction and thereafter submitted the chargesheet under Ext. 5 wherein Ext. 5(1) is his signature.

31. The deposition of the aforesaid witness during cross examination are reproduced herein below : “In the FIR it was alleged that the complainant had paid a sum of Rs. 200/- to the accused for getting a certified copy of sale deed. But I did not investigate as to the number and person in whose favour the sale deed was executed. It is also stated in the FIR that the complainant filed one application for getting the certified copy. In my tenure I did not seize the said application from the concerned office nor my previous I/O had done it. I did not visit the Sub-Register office to get knowledge about the procedure and manner of registration of sale deed. In the seizure list it is stated that the tainted

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notes were recovered from the possession of the accused, but it has not been specifically mentioned in the seizure list as to where from the same was recovered. During my tenure of investigation I did not make attempt to ascertain the place specifically as to where from the tainted notes were recovered. The PWs excepting the complainant did not depose before the I/O that they had seen the demand and acceptance of money by the accused. The allegation of the complainant as to the demand and acceptance of illegal gratification has not been corroborated by the PWs. The complainant is scribe by profession. It is not a fact that the complainant with a view to make a news item laid the false allegation against the accused. In the prosecution sanction the sanctioning authority did not mention the documents which he perused before according the prosecution sanction. On the basis of the materials gathered by my previous I/O I laid the chargesheet.

So these are all about the evidences on record.”

32. On a minute perusal of the entire evidences on record it appears that the complainant went to the office of Sub-Registrar and sought certified copy of certain sale deed and then accused being Grade-IV employee demanded a sum of Rs. 200/- as the bribe from the complainant. Thereafter the complainant had informed the matter to the D.C. and the D.C. laid the trap. The complainant allegedly paid Rs. 200/- in a brown envelope to the accused. The accused named

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above allegedly accepted it and it was recovered from the possession of the accused as alleged by the complainant, but the aforesaid story deposed by the complainant has not been corroborated by any witness as revealed from the testimonies of the other PWs i.e. from PW-2 to PW-10. So far recovery of the envelope is concerned it is revealed that one set of witnesses stated that it was recovered from the exclusive possession of the accused, but another set of witnesses deposed that it was recovered from a table which was not originally allotted to the accused.

33. This apart one witness being the investigating officer deposed that it was recovered from a file which was on a table, but the prosecution could not generate materials that the table was allotted to the accused and the accused is the person who dealt with the file in question.

34. This apart the complainant himself contradicted his own story during trial in the following manner that in the ejhar so also during examination-in-chief he had deposed that he had already applied for getting certified copy of a certain sale deed, but during cross-examination the said witness admitted that on the date in question he went to the office in question for applying certified copy of a sale deed. For the aforesaid reasons and the facts and circumstances it is to be seen as to how far the testimonies of the PW-1

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inspire confidence in as much as he is the solitary witness supporting the prosecution story.

35. It needs to be mentioned that demand and acceptance are sign-qua-non for making the basis of the conviction under the offence alleged of. In this regard the observation recorded by the Hon'ble Apex Court of the country in B. Jayraj Vs. State of A.P (2014) CriLJ SC 2433 is pertinent and the said observation under para no. 7 is

reproduced herein below : “7. In so far as the offence

Under Section 7 is concerned, it is a settled position in

law that demand of illegal gratification is sige qua non

to constitute the said offence and mere recovery of

currency notes can not 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. C.B.I., (2009) 3 SCC 779”.

Further the Hon'ble Apex Court of the country in regard the aforesaid aspect observed in Mukut Bihari and others v. State of Rajasthan (AIR) 2012 SC 2270 under para no. 11 in

the following manner : “11. The law on the issue is well

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settled that demand of illegal gratification is sine qua

non for constituting an offence under the Act 1988.

Mere recovery of tainted money is not sufficient to

convict the accused, when the substantive evidence in

the case is not reliable, unless there is evidence to

prove payment of bribe or to show that the money was

taken voluntarily as bribe. Mere receipt of amount by

the accused is not sufficient to fasten the guilt, in the

absence of any evidence with regard to demand and

acceptance of the amount as illegal gratification, but

the burden rests on the accused to displace the

statutory presumption raised under Section 20 of the

Act 1988, by bringing on record evidence, either direct

or circumstantial, to establish with reasonable

probability, that the money was accepted by him, other

than as a motive or reward as the court is required to

consider the explanation offered by the accused, if any,

only on the touchstone of preponderance if probability

and not on the touchstone of proof beyond all

reasonable doubt. However, before the accused is

called upon to explain as to how the amount in

question was found in his possession, the foundational

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facts must be established by the prosecution. The

complainant is an interested and partisan witness

concerned with the success of the trap and his

evidence must be tested in the same way as that of

any other interested witness and in a proper case the

court may look for independent corroboration before

convicting the accused person. (Vide : Ram Prakash

Arora v. The State of Punjab AIR 1973 SC 498; Panalal

Damodar Rathi v. State of Maharashtra AIR 1979 SC

1191; Suraj Mal v. The State (Dlehi Admn.) AIR 1979 SC

1408; Smt. Meena Balwant Hemke v. State of

Maharashtra AIR 2000 SC 3377; T. Subramanian v. The

State of T.N. AIR 2006 SC 836; A. Subair v. State of

Kerela (2009) 6 SCC 587; State of Maharashtra V.

Dnyaneshwar Laxman Rao Wankhede (2009) 15 SC 200;

C.M. Girish Babu v. CBI, Cochin, High Court of Kjerela,

AIR 2009 SC 2022; and State of Kerela and Anr. v. C.P.

Rao (2011) 6 SCC 450)”.

36. Herein this case the story of the complainant as revealed from his testimonies is not found to be supported by other witnesses as regards the plea of demand and acceptance of the bribe money by the accused. Further it is

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found that the complainant himself has contradicted his own story during trial as regards the purpose of his entry into the office in question as he himself in the ejhar and during examination in chief deposed that he had already filed application for getting certified copy of sale deed in question, but the same complainant during cross examination admitted that on the date in question he enquired about the procedure of filing application for getting certified copy of sale deed in question.

37. Under the aforesaid premises it will not be safe to rely the testimonies of complainant (PW-1) to convict the accused as his testimonies so far demand and acceptance of the bribe and the recovery of the tainted notes from the exclusive possession of the accused has not been supported by any other witness. Thus considering the entire facts and circumstances in the light of the judicial authority as been been narrated herein above it is felt that the testimonies so far surfaced during trial are not at all sufficient to attract the ingredients of section 7 of PC Act and as such due to insufficiency of evidences the accused is entitled to get the benefit of doubt. Accordingly the accused is acquitted on benefit of doubt and set at liberty forthwith. His bail bond stands discharged.

The seized money be confiscated to the State Exchequer. Judgment is delivered in the open Court.

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Given under my hand and seal of this Court on this 27th day of July, 2015.

The case is disposed of accordingly.

Dictated and corrected by me.

Special Judge, Assam, Special Judge, Assam,

Guwahati. Guwahati.

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A P P E N D I X

Exhibited by Prosecution :

(1) Exbt. 1- Complain to DC/FIR, (2) Exbt. 2- Seizure List,(3) Exbt. 3- Sketch map,(4) Exbt. 4 – Prosecution sanction, (5) Exbt. 5 Chargesheet,(6) M Exbt. 1- Brown envelope, (7) M Exbts. 2 & 3 - 2 nos. of hundred rupee notes.

Special Judge,

Assam

Guwahati.