The essential element of demand for illegal gratification under Section 7 of the Prevention of Corruption Act must be proved, and mere possession and recovery of money without evidence of voluntary acceptance of the bribe are insufficient grounds for conviction.

JUDGMENT :

Pushpendra Singh Bhati, J.

1. In the wake of instant surge in COVID - 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This criminal appeal under Section 374 Cr.P.C. has been preferred against the judgment 13.10.2000 passed by the learned Special Judge (Sessions Judge), Prevention of Corruption Act, Jodhpur in Criminal Case No. 176/97, whereby the present accused-appellant was convicted for the offence under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'Act of 1988') and was sentenced to undergo one year's rigorous imprisonment and a fine of Rs.3000/-, in default of payment of which, he was to undergo further three months simple imprisonment; for the offence under Section 13(1)(d)(2) of the Act of 1988, he was sentenced to undergo two years rigorous imprisonment and a fine of Rs.6000/-, in default of payment of which, he was to undergo further six months simple imprisonment.

3. Brief facts of this case, as placed before this Court by Mr. J.S. Choudhary, learned Senior Counsel assisted by Ms. Sampatti Choudhary appeared on behalf of the accused-appellant, are that on 23.02.1996, one Jay Shankar (PW-1) submitted a written complaint (Ex.P.2) before the Additional Superintendent of Police, ACB Chowki, Jodhpur, alleging therein that his wife, who was working as A.N.M. in the Medical Department, expired on 17.08.1995. It was further alleged that a bill of an amount of Rs.42,450/- towards the insurance was pending with the said Department. It was also alleged that the complainant approached the present accused-appellant, who at the relevant time, was the Medical Officer, PHC Banar, but the present accused-appellant demanded illegal gratification from the complainant for doing the needful.

4. On the basis of the aforementioned report/complaint, the ACB officials arranged the trap and send the complainant to give the present accused-appellant, as per his demand, the amount of illegal gratification; the complainant handed over such amount to the present accused-appellant, whereafter, the ACB officials upon reaching the spot, recovered from the present accused-appellant an amount of Rs.1500/- received by him as illegal gratification.

5. Thereafter, an FIR bearing No. 44/96 was registered against the accused-appellant for the offence under Sections 7 & 13(1)(d) (2) of the Act of 1988; wherein after investigation, a charge-sheet for the said offences was filed against the accused-appellant.

6. Subsequently, charges for the aforementioned offences were framed against the accused-appellant, who denied the same, and claimed the trial.

7. Learned Senior Counsel for the accused-appellant submitted that the accused-appellant has never demanded the illegal gratification from the complainant (PW-4), which fact is further substantiated by the statement of the complainant rendered before the learned court below; thus, as per learned Senior Counsel, even the complainant himself has not supported the prosecution story in any manner whatsoever. Learned Senior Counsel further submitted that the attesting witnesses to the recovery memo and the other prosecution witnesses have also turned hostile, and thus, have not supported the prosecution story. Thus, as per learned Senior Counsel, the prosecution has completely failed to prove its case beyond all reasonable doubts. 7.1 Learned Senior Counsel also submitted that once it has been proved that the accused-appellant even was not authorized to make the payment towards the insurance to the complainant, then there was no question of any intention or motive on the part of the accused-appellant to demand the alleged illegal gratification.

8. Learned Senior Counsel for the accused-appellant also submitted that the presumption under Section 7 of the Act of 1988 can only be made once a demand for an illegal gratification has been made; in the present ca