JUDGMENT

Ram Prasanna Sharma, J. - The appeal is directed against judgment dated 01.4.2003 passed by First Additional Sessions Judge/Special Judge, under the Prevention of Corruption of Act, 1988 (for short 'the Act 1988'), Raipur (Chhattisgarh) in Special Session Trial No. 08/2000 wherein the said Court convicted the appellant for commission of offence under Section 7 and 13(1)(d) read with Section 13(2) of the Act, 1988 and sentenced to undergo rigorous imprisonment for 02 years and to pay fine of Rs.2,000/- and RI for 05 years and to pay fine of Rs.5000/- respectively with default stipulations.

2. In the present case, name of the complainant is Kadam Das. As per the version of prosecution, said Kadam Das had filed an application before the appellant, who was posted as Naib Tahsildar at Basna, for appointment as Kotwar and the appellant demanded illegal gratification to the tune of Rs.5,000/-. Thereafter the complainant filed an application before the Superintendent of Lokayukta Raipur on 24.11.1999. One tape recorder was provided by the office of the said Superintendent and voice of the appellant was recorded in the same. A trap party was arranged and on trap it is found that the appellant received Rs.2,000/-. Thereafter the matter was reported and investigated and after completion of the trial, the said Court convicted the appellant as mentioned above.

3. Learned counsel for the appellant submits as under:

(i) From the statement of complainant Kadam Das (PW2) it is established that demand was made in presence of one Manoj Patel but said Manoj Patel rebutted the version of the complainant and as per the version of Manoj Patel, clerk of the office of the appellant namely Parsumram demanded illegal gratification.

(ii) From the evidence of Manoj Patel, it is clearly established that no demand was made by the appellant. Version of complainant Kadam Das is rebutted by the version of Manoj Patel, therefore, demand of illegal gratification by the appellant is not established.

(iii) The tape recorder was not operated in the Court, therefore, same is given to Kadam Das for satisfaction of the investigating officer whether to proceed with the case and investigate the matter or to drop the proceedings. Therefore, the said tape recorder is not evidence of the case and no finding can be arrived at on the basis of said tape recorder.

(iv) Though the trap witnesses namely Shyam Sunder Rao (PW-5), Narayan (PW-6), Dilip Singh Rathore (PW-8), Basant Kumar Dhruv (PW-9) and RK Rai (PW-11) deposed that when the hands of the appellant was subjected to sodium carbonate solution, it turned pink, but from the evidence of Manoj Patel it is clearly established (para 9) that when the appellant moved to wash room to ease himself, complainant Kadam Das put the currency notes in the polythene bag which was hanging on the motor cycle of the appellant which shows that the appellant did not accept any amount from the complainant, therefore, Sodium Carbonate test with the appellant has no bearing with acceptance of the amount of illegal gratification. As the demand and acceptance is not established in the present case, Section 20 of the Act, 1988 has no application in the present case and no presumption can be drawn against the appellant.

(v) The trial Court has overlooked the material evidence, therefore, finding recorded by the trial Court is liable to be set aside.

4. On the other hand, learned counsel for the State supporting the impugned judgment would submit that the finding of the trial Court is based on proper marshaling of the evidence and the same is not liable to be interfered with while invoking the jurisdiction of the appeal.

5. I have heard learned counsel for the parties and perused the judgment impugned.

6. The first question for consideration before this Court is whether the appellant demanded illegal gratification to the tune of Rs.5,000/-from complainant Kadam Das (PW-2). As per the version of Kadam Das, he had gone to the office of th