Proof of demand and acceptance of bribe is essential for a conviction under the Prevention of Corruption Act; mere recovery of money is insufficient.

JUDGMENT :

Rajani Dubey, J.

The appellant in this appeal calls in question the legality and validity of the judgment of conviction and order of sentence dated 12^th July, 2007 passed by Special Judge, Central Investigation Bureau, Raipur in Special Criminal Case No.49/2004 whereby the appellant stands convicted and sentenced as under:

Both the sentences were directed to run concurrently.

2. Case of the prosecution, in brief, is that the accused/appellant was posted as SDO, Phone-2 in BSNL, Bilaspur on 19.6.2003. In the year 2003 the complainant KP Agrawal, proprietor of M/s Akshay Construction, was doing the work of laying cable on contract under the accused/appellant. As the balance amount of the complainant remained unpaid, he contacted the appellant but the appellant demanded Rs.80,000/- bribe for it. The complainant agreed to pay first installment of Rs.40,000/- to the appellant. However, as the complainant did not want to give bribe to him, he made a complaint to this effect to the Central Bureau of Investigation and accordingly, on 20.6.2003 the team of CBI in a preplanned manner reached the office of the accused/appellant i.e. BSNL, Bilaspur and caught him red handing while he was taking bribe of Rs.40,000/- from the complainant. After completing the necessary formalities, charge sheet was filed against him before the concerned jurisdictional Magistrate.

3. Learned trial Court framed charges under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 against the accused which were abjured by him and he prayed for trial. In order to substantiate its case the prosecution examined 09 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence he examined three witnesses.

4. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the accused/appellant as mentioned above. Hence this appeal.

5. Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the material available on record. The complainant could not be examined in this case because of his death and only his son PW-5 Umesh Agrawal has been examined who turned hostile but recognized the signature of his father. There is no legally admissible evidence with regard to demand of bribe on the part of the appellant from the complainant. No opportunity of cross-examination of the complainant could be availed by the appellant due to unfortunate death of the complainant, hence for want of corroboration with regard to the material facts i.e. with regard to demand of illegal gratification, the appellant ought not to have been convicted. The material witnesses PW-1 Late KP Agrawal, PW-4 Anil Jaiswal (panch witness) and PW-5 UC Agrawal have not supported the prosecution case. He submitted that according to search list Ex.P/5 documents from Ex.P/6 to P/29 were recovered but neither in presence of the appellant nor in presence of PW-2 & PW-4 despite their availability and further, the persons in whose presence they were recovered namely AK Shukla, CR Banjare and SK Tiwari, they have not been produced as witness to prove recovery of Ex.P/6 to P/29. Thus, it creates serious doubt as to recovery of these documents. There is also no recording of conversation between the appellant and the complainant regarding demand of illegal gratification and only there is recovery of Rs.40,0