IMPORTANT POINTS
Demand of illegal gratification is sine qua non for offence under P.C. Act.
Absence of shadow witness will not vitiate the whole trap proceeding.

JUDGMENT

Dr. B.S. Chauhan, J.-This appeal has been preferred against the judgment and order dated 12.10.2011 passed by the High Court of Judicature at Rajasthan (Jaipur Bench) in S.B. Criminal Appeal No.726 of 2001, by which it has affirmed the judgment and order of the trial Court dated 7.9.2001 passed by the Special Judge (ACD Cases), Jaipur in Regular Special Criminal Case No.26 of 1995 (State of Rajasthan v. Mukut Bihari etc.) whereby the appellant Mukut Bihari stood convicted for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter called the “Act 1988”) and under Section 120B of Indian Penal Code, 1860 (hereinafter called ‘IPC’) and has been awarded the punishment of rigorous imprisonment for a period of 2 years for each count; whereas appellant Kalyan Mal has been convicted for the offences punishable under Section 13(1)(d) read with Section 13(2) of the Act 1988 and under Section 120B IPC and he has also been awarded the punishment of rigorous imprisonment for a period of 2 years on each count.

2. Facts and circumstances giving rise to this case are that:

(A) Rafiq (PW.1) filed a complaint on 16.11.1994 before the Anti-Corruption Department (hereinafter called “ACD”), Tonk that his father Deen Mohd. (PW.8) underwent the treatment in Sahadat Hospital, Tonk for urinary infection from 24.10.1994 to 12.11.1994. He stood discharged on 12.11.1994, however he was not issued the discharge ticket and for which Mukut Bihari-accused demanded Rs.100/- as bribe for issuance of the same. The said demand was made on 14.11.1994 when the complainant (PW.1) offered Rs.75/- and 2 Kilogram of Ladoo.

(B) In view of the aforesaid complaint, a trap was arranged and as per plan, the complainant met Mukut Bihari, appellant in the staff room of the surgical ward of the hospital and had conversation with him. Both of them went to the store room wherein the complainant handed over Rs.100/- to Kalyan Mal, appellant at the instance of Mukut Bihari, appellant. The trap party arrested both the appellants immediately and the case was registered against them. After completing the investigation, charge sheet was filed against both of them. During the course of trial, a large number of witnesses were examined and on conclusion of the trial, the court found them guilty and imposed the punishment as referred to hereinabove vide judgment and order dated 7.9.2001.

(C) Aggrieved, the appellants preferred Criminal Appeal No.726 of 2001 before the Rajasthan High Court which has been dismissed vide impugned judgment and order dated 12.10.2011. Hence, this appeal.

3. Ms. Shobha, learned counsel appearing for the appellants, has submitted that for constituting an offence under the Act 1988, the prosecution has to prove the demand of illegal gratification. Recovery of tainted money or mere acceptance thereof is not enough to fasten the criminal liability as the money could be offered voluntarily and the accused may furnish a satisfactory explanation for receipt of the money. The trap case should be supported by an independent eye- witness. The deposition of an interested witness requires corroboration. The conversation between the accused and the complainant at the time of demand and accepting the money must be heard/recorded by the Panch witness. If two views are possible, then the one in favour of the accused should prevail. In the instant case then the prosecution failed to prove the foundational fact beyond reasonable doubt. Therefore, the appeal deserves to be allowed.

4. On the contrary, Shri Kunal Verma, learned counsel for the State of Rajasthan, has vehemently opposed the appeal contending that acceptance of tainted money is an ample proof for conviction of the offences punishable under the Act 1988. It is not necessary in the trap cases that there must be a shadow witness and conversation between the complainant and the accused should be recorded or heard by the independent wi