Demand for illegal gratification is essential to establish guilt under the Prevention of Corruption Act, and mere recovery of money is insufficient.

JUDGMENT :

Ganesh Ram Meena, J.

1. By filing instant criminal appeal under section 374 (2) CrPC, the accused appellant has challenged the judgment of conviction and sentence dated 23.05.2001 passed by the Court of learned Special Judge, Sessions Court, Prevention of Corruption Act, Kota (for short ‘the learned trial court’) in Sessions Case No.21/1998, State Vs. Vijay Prakash & Anr, whereby the learned trial court convicted him for the offences punishable under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (For short ‘the Act of 1988’) and sentenced to undergo three years rigorous imprisonment for each offence and also fine of Rs.3,000/- for each.

2. The facts of the case in nutshell are that on 24.06.1996, complainant Ajay Madhwani (PW14) submitted a written report before the Superintendent of Police, Anti Corruption Bureau, Kota to this effect that a licence of fire works has been issued on his name by the Collector, Kota which is renewed upto March 1997. His shop of fire works is situated Sripura, Sindhi Chowk. Today in the morning, Mr. Vijay Prakash Ji, who is Halka Dy.S.P of their area called him in the office. Complainant further mentioned that when he went in the office, he (Vijay Prakash) told him that he is ruffian and he does rowdiness and he will get cancel his licence. Upon this he told that he is a poor man and told not to do the same. The complainant further mentioned that he (Vijay Prakash) told him that if he makes payment of Rs.2,000/- to him then he will not get cancel his licence. Then he told that he cannot give Rs.2,000/-. Thereafter, he (Vijay Prakash) told him that he will have to give Rs.1,000/- and only then his licence will be saved from cancelling. The complainant further mentioned that he agreed to give Rs.1,000/-. Mr. Vijay Prakash Ji, Dy.S.P. told him to give Rs.1000/- to his Commando Mr. Hukam Singh and he will give him. Hukam Singh was standing there. The complainant further mentioned that Hukam Singh told him that he will collect Rs.1,000/- from him and he told him to come in the evening at his shop. The complainant further mentioned that he does not want to give him the bribe and catch him red- handed. The phone conversation of complainant and Vijay Prakash was got recorded.

Trap proceedings were conducted on 27.06.1996 and from the possession of Hukam Singh Rs.1,000/- were recovered.

On the basis of aforesaid written report, an FIR No.148/1996 was registered.

3. The police after investigation submitted charge- sheet against the accused appellant for the aforementioned offences in the Court concerned.

4. The learned trial court framed the charges against the accused appellant for the offences under sections 7 and 13(1)(d) read with section 13(2) of the Act of 1988 and sections 120B and 384 IPC, to which he denied and opted for trial.

5. From the prosecution side, the statements of 17 witnesses were recorded and certain documents were exhibited.

6. The statement of the accused appellant was recorded under section 313 CrPC. The accused appellant in his statement has denied about the allegations levelled against him and deposed that he has been falsely implicated in the instant case

7. The learned trial court vide its impugned judgment dated 23.05.2001 convicted and sentenced the accused appellants for the aforesaid offences.

8. Mr. Pankaj Gupta, counsel appearing for the accused appellant submitted that the accused appellant was only constable and he was not competent to allow or cancel the sanction for license to the complainant. Thus, no work was pending with the appellant. Counsel further submitted that as per the FIR and prosecution sanction (ExP-1) the demand was raised by Vijay Prakash as he was the Dy.S.P. and as per the allegation, appellant being his Commando was directed to collect the bribe. Thus, in absence of demand no offence under the PC Act is made out.

Counsel further submitted that the prosecution has to establish that if there is any demand, it has