TOP BEST ANTI CORRUPTION MATTER ADVOCATE LAWYER OF RAJASTHAN HIGH COURT JAIPUR

Criminal Laws Civil Laws Arbitration Revenue Laws Constitutional Laws Company Laws Consumers Laws Motor Accident Laws(MACT) Family/Matrimonial Disputes Labour Laws Negotiable Instruments Laws(NIA-138) Armed Forces Laws Public Interest Litigation Laws Enviromental Laws IP Laws Corporate Registration Other Updates Criminal Appeal allowed in Corruption Matters : Rajasthan High Court Jaipur The important aspect of legal handling the matters registered under Prevention of Corruption Act, 1947. SHEORAN & TANWAR ASSOCIATES (Law Firm) 111, SHIV NAGAR - II, MURLIPURA SIKAR ROAD, JAIPUR (RAJASTHAN) Website:- www.stlegal.in Email: stlegaljaipur@gmail.com Contact : +91-9001612660 HANDLING OF CORRUPTION MATTERS IN COURTS : A CRIMINAL JUSTICE RESPONSE I. INTRODUCTION India is a large country with a population of over a billion people. It is the second most populous country in the world after China. It is one of the fastest growing economies in the world and is attracting huge investments from developed countries. In spite of the healthy growth indices, a vast population still lives in poverty and does not have access to basic sanitation, healthcare and education. The country’s progress is seriously hampered by all pervasive corruption. It is preventing the benefits of development from reaching the deprived sections of society. Weeding out corruption today is a major challenge before Indian society. The lawmakers of India have always been conscious of this problem. The British enacted the first codified law, The Indian Penal Code, in 1860. It had a chapter dealing with offences committed by public servants involving corruption and corrupt practices. Later, a special piece of legislation was enacted, i.e. he Prevention of Corruption Act 1947, to deal specifically with the problem of corruption in public life. Amendments were made from time to time to keep pace with the changing times. Later on, in 1988, it was replaced by a more comprehensive and broad piece of legislation - The Prevention of Corruption Act 1988. Apart from this Act, India is a signatory to the United Nations Convention against Corruption (UNCAC). It has signed Extradition and Mutual Legal Assistance Treaties in Criminal Matters with a number of countries to ensure mutual co-operation in matters pertaining to investigation of corruption and other criminal cases. Co-operation is sought from other countries under these treaties through the instrument of Letters Rogatory (LRs). This paper aims to give a brief overview of the Indian laws dealing with the problem of corruption. The main law, i.e. The Prevention of Corruption Act 1988, is discussed in brief. Provisions pertaining to confiscation of ill-gotten wealth and asset recovery have also been referred to. The established mechanisms for collecting information about corruption are also discussed. The problems and challenges faced by the country in the fight against corruption are also highlighted in brief. II. LAWS AND PROVISIONS TO TACKLE CORRUPTION A. The Prevention of Corruption Act, 1988 The Prevention of Corruption Act 1988 (hereinafter referred to as “the Corruption Act”) was enacted to consolidate different anti-corruption provisions from various pieces of legislation under one umbrella and to make them more effective. The Corruption Act, inter alia, widened the scope of the definition of a “public servant”; enhanced penalties provided for offences in earlier laws; incorporated the provisions of freezing of suspected property during trial; mandated trial on a day-to-day basis, prohibited the grant of stay on trial; etc. Since the Corruption Act is the main law for dealing with offences pertaining to corruption in India, its salient features are discussed below. 1. Definition of “Public Servant” The Corruption Act deals with corruption in the public sector by public servants. Though the Corruption * Deputy Inspector General of Police, Central Bureau of Investigation, India. Act does not cover corruption in the private sector, the definition of “public servant” in sec. 2 of this Act even covers certain categories of people who are not employed by the government. The Corruption Act does not only cover persons employed by the government or in the regular pay of the government but also persons remunerated by fees or commission for the performance of any public duty by the Government but not employed by it. The latter category is very important in my opinion because, by virtue of their position, such persons enjoy considerable power and can abuse the same to indulge in corrupt activities. The Corruption Act thus includes the Ministers, members of Parliament, State Legislative Assemblies, Municipal Corporations, State Cooperative Societies etc. in its fold. Even office bearers of non-governmental organizations that receive financial assistance from the government are defined as public servants. 2. Offences and Penalties under the Corruption Act Various acts of omissions and commissions defined as offences under the Corruption Act can be broadly divided into the following categories: (i) Bribery of Public Servants: punishable by secs. 7, 10, 11 & 12 of the Corruption Act (Article 15 of the UNCAC) Sec. 7 punishes a public servant or a person expecting to be a public servant, who accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act. The important point to note is that even the sheer demand of a bribe or agreeing to accept a bribe is an offence under this law. Actual exchange of a bribe is not an essential requirement to be prosecuted under this law. A willing bribe giver is also punishable under sec. 12 of the Corruption Act. Further, those public servants who do not take a bribe directly, but through middlemen or touts, and those who take valuable things from a person with whom they have or are likely to have official dealings, are also punishable as per sec. 10 and 11 respectively. It is obvious that there is zero tolerance for corruption by public servants in the law and the Corruption Act demands exemplary conduct from them. All these offences are punishable with a minimum imprisonment of six months, extendable up to five years, and also with a fine. (ii) Embezzlement, Misappropriation of Property by Public Servants: punishable by sec. 13 (1) (c) of the Corruption Act (Article 17 of the UNCAC) Sec. 13 (1) (c) punishes public servants who dishonestly or fraudulently misappropriate or convert to their own use any property entrusted to them as a public servant. This offence is punishable with a minimum imprisonment of one year, extendable up to seven years, and also with a fine. (iii) Trading in Influence: punishable by secs. 8 & 9 of the Corruption Act (Article 18 of the UNCAC) Secs. 8 & 9 punish middlemen or touts who accept or obtain or agree to accept or attempt to obtain, gratification as a motive or reward for inducing by corrupt or illegal means, (sec. 8) or by exercise of personal influence (sec. 9), any public servant, to do or forbear to do any official act. These offences are punishable with a minimum imprisonment of six months, extendable up to five years, and also with a fine. (iv) Abuse of Functions by Public Servants: punishable by sec. 13 (1) (d) of the Corruption Act (Article 19 of the UNCAC) Sec. 13 (1) (d) punishes public servants who abuse their official position to obtain for themselves or any other person, any valuable thing or pecuniary advantage (quid pro quo is not an essential requirement). This offence is also punishable with a minimum imprisonment of one year, extendable up to seven years, and also with a fine. (v) Illicit Enrichment of Public Servants: punishable by sec. 13 (1) (e) of the Corruption Act (Article 20 of the UNCAC) Sec. 13 (1) (e) punishes public servants, or any person on their behalf, who are in possession, or who have been in possession, of pecuniary resources or property disproportionate to their known sources of income, at any time during the period of their office. Known sources of income have further been explained as income received from any lawful source only. It is a very important provision, particularly for booking public servants in senior positions because often there are not many complaints against them related to bribe seeking or abuse of official position. This offence is also punishable with a minimum imprisonment of one year, extendable up to seven years, and also with a fine. (vi) Habitual bribe seekers are punishable under sec. 13 (1)(a)& (b) of the Corruption Act with a minimum imprisonment of one year, extendable up to seven years, and also with a fine. (vii) Persons who habitually act as middlemen or touts, or who pay bribes, are punishable with a minimum imprisonment of two years, extendable up to seven years, and also with a fine, as per sec. 14. (viii) Attempt at Certain Offences by Public Servants: punishable by sec. 15 of the Corruption Act (Article 27 of the UNCAC) An attempt at committing offences pertaining to criminal misappropriation of property or abuse of official position by a public servant is punishable with imprisonment for up to three years and also with a fine, under sec. 15. 3. Determination of Quantum of Fine - sec. 16 of the Corruption Act Sec. 16 mandates that while fixing the amount of a fine as part of penalty for committing an offence under this Act, the court will take into consideration the value of the properties which are proceeds of crime, and in case of disproportionate assets, pecuniary resources or property for which the accused is unable to ccount satisfactorily. 4. Necessity of obtaining Previous Sanction/Permission for Prosecution Sec. 19 mandates that the investigating agency, after completing an investigation of a case for offences under secs. 7, 10, 11, 13 and 15 of this Act acquires the prior approval of the authority competent to remove the public servant from his or her present post, before launching prosecution in a court of law. No court can take cognizance of above offences unless such a sanction accompanies the report of the investigating agency filed in the court of law. Hence, after completing investigation, the investigating agency forwards its investigation report, containing detailed findings of the investigation, to the competent authority to provide sanction for launching prosecution against the accused public servant. The investigation report is filed in a court of law along with such sanction to enable the court to initiate prosecution. This has been done with a view to save public servants from frivolous prosecution or from prosecution for acts done in good faith while discharging an official function. This is applicable only to incumbent public servants. B. Freezing, Seizure and Confiscation of Properties - The Criminal Law (Amendment) Ordinance, 1944 (Article 31 of UNCAC) This is an important law on freezing, seizure and confiscation of properties which are proceeds of crime, including offences under the Corruption Act. Such properties identified during investigation can be frozen under this law. Properties can remain frozen till disposal of the case by the court after completion of the investigation. If the alleged offence is proved in the court of law and the property is proved to be the proceeds of crime, the court will order its confiscation. C. Criminal Procedure Code 1973 together with Mutual Legal Assistance Treaties (MLAT) in Criminal Matters and Extradition Treaties Sec. 166 A and 166 B of the above code empower the crime investigation agencies of India to make requests to other countries as well as to entertain requests from other countries to render assistance in the investigation of crime registered in the respective countries. Such letters of request are popularly known as Letters Rogatory. Such Letters Rogatory are executed on the basis of Mutual Legal Assistance Treaties and Extradition Treaties India has signed with other countries. To date India has Mutual Legal Assistance Treaties in Criminal Matters with 20 countries and Extradition Treaties with 25 countries. The Mutual Legal Assistance Treaties invariably have a chapter on asset recovery and sharing the same. With other countries, international co-operation is sought on the basis of guarantee of reciprocity. In a case currently under trial in my region, we have effectively made use of these instruments in tracking proceeds of crime in a foreign country. National Fertilizer Ltd., an important public sector enterprise, placed an order for supplying 0.2 million metric tons of urea fertilizer to a Turkish firm. Advance payment of approximately 38 million US dollars was also made to the firm. With the connivance of public servants, the proprietors of this firm siphoned off the whole amount and did not supply any fertilizer. The Central Bureau of Investigation registered a criminal case in 1996. During investigation, the CBI was able to track a big part of the misappropriated amount to certain bank accounts in Switzerland and other countries. Resorting to Letters Rogatory as per the Criminal Procedure Code, it has been possible to track the money lying in such bank accounts. On conclusion of trial of this case, the proceeds of crime are expected to be returned to the firm. D. The Prevention of Money Laundering Act 2002 (Article 23 of the UNCAC) Many public servants are able to hold their ill-gotten wealth in foreign countries, which they subsequently transfer to their homeland through money laundering, disguising them as funds, apparently from a legal source. This Act empowers the Directorate of Enforcement, India, and Financial Intelligence Unit, India, both agencies of the Government of India, to investigate and prosecute such persons under the said Act. E. The Foreign Exchange Management Act 1999 Middlemen or touts, who take huge commissions for brokering deals pertaining to purchases from foreign suppliers, often transfer such money in foreign currencies, claiming it to be the proceeds of some business abroad. This Act empowers the Directorate of Enforcement, India to investigate and prosecute such persons under the said act. F. The Right to Information Act 2005 It is a well-known fact that too much secrecy in public administration breeds corruption. The Right to Information Act aims at ensuring efficiency, transparency and accountability in public life. This Act requires all public authorities, except the ones that handle work relating to national security, to publish all information about their functioning at regular intervals through various means of communication, including the Internet. Now any person can seek any information from the concerned public authority just by filing an application at almost at no cost. The public authority has to reply to the application compulsorily within 30 days. If the information sought is denied, the applicant has a right to agitate further before the appellate authorities under this Act. This can indeed be described as a revolutionary step towards the eradication of corruption from public life. G. India and the United Nations Convention against Corruption 2003 (UNCAC) India has welcomed the UNCAC, which provides for international co-operation and mutual legal assistance in investigating cases of corruption and recovery of assets. India signed the UNCAC in December 2005. By signing the Convention India has reiterated its resolve to strengthen international co-operation as envisaged in the Convention. It is in the process of enactment of requisite enabling legislations by the concerned Ministries or Departments before ratifiying the Convention. Once ratified, the Convention will nboost India’s effort and commitment to fight corruption at both domestic and international level. III. INVESTIGATION, PROSECUTION AND ADJUDICATION A. Investigation India is a union of States as per the Indian Constitution. Crime is a State subject under the Constitution. Investigation and prosecution of crimes, including corruption cases, which happen within the territorial jurisdiction of the State, therefore remain the basic responsibility of the State agencies. As per the federal setup of the Indian Constitution, besides States, there are certain territories, known as Union Territories, which are directly administered by the Government of India. In order to investigate and prosecute crimes in these areas, primarily the corruption cases, the Government of India has set up the Central Bureau of Investigation. The main agencies to probe corruption cases in India are as outlined below. 1. Anti-Corruption Bureau of States These police agencies of the States are meant mainly for investigating corruption cases within the States under the Corruption Act. They are responsible for the prevention, detection and investigation of corruption crime only and are not engaged in conducting other police duties such as handling conventional crimes and law and order. After investigating a crime, they file the investigation reports in a court of law to launch prosecution. 2. Ombudsman, known as ‘Lokayuktas’ Many Indian states have set up the office of Ombudsman, known as Lokayuktas, mainly to probe complaints against ministers and public servants pertaining to corruption. 3. Central Bureau of Investigation (CBI) The CBI is an investigating agency set up by the Government of India to investigate crime, especially corruption cases, in Union Territories, which are directly administered by the Government of India. Over a period of time, it has become the premier corruption investigation agency in the country. It enjoys high credibility amongst the people of India. As a result even the States also refer sensitive and large-scale corruption cases to the CBI for investigation. The High Courts of various States and the Supreme Court of the country have powers under the Indian Constitution to entrust investigation of any crime to the CBI for investigation. The CBI has a training academy of its own. It not only provides training to its own personnel but also organizes in-service training courses for the investigators and prosecutors of the State agencies. The State agencies look up to the CBI as an expert agency for guidance in matters relating to investigation and prosecution of corruption cases. The co-operation between the two sets of agencies is highly satisfactory. 4. The Directorate of Enforcement, India Though it does not have powers to investigate and prosecute cases under the Corruption Act, the Directorate of Enforcement, India has powers to investigate and prosecute people involved in money laundering, including public servants, under the Prevention of Money Laundering Act 2002. B. Prosecution Prosecution of cases investigated by both the State Anti-Corruption Bureaus and CBI is undertaken by government-appointed prosecutors. In the CBI, there are entries at two levels for prosecutors designated as “Assistant Public Prosecutors” (APP) and “Public Prosecutors” (PP) respectively. They are recruited through a competitive examination. For appointment as an APP, the minimum qualification required is to hold a degree in law and to have a minimum of three years’ experience practicing as an advocate in a court of law. For appointment as a Public Prosecutor, the requirement is to hold a degree in law and to have a minimum of seven years’ experience practicing as an advocate in a court of law. After appointment, APPs and PPs are trained in the CBI academy. Besides the above, there is another category of prosecutors, known as “Special Counsels”. They are counsels who have experience of practicing as an advocate for more than ten years and are considered very skilled. They do not wish to join the public prosecution service on a permanent basis but are willing to take up individual cases on behalf of the CBI. The government prepares a panel of such senior lawyers, who conduct prosecution of individual cases assigned to them. The system of appointment of prosecutors in the States is more or less the same as described above for the CBI. Prosecutors are not only responsible for advocating on behalf of the State at trial, they also guide the investigating officers during investigation of the cases. Investigation officers are free to seek legal counsel on any point of law from the prosecutors at any stage of investigation. The evidence collected during investigation of a case is legally scrutinized by a prosecutor before it is filed in the court of law. prosecutor can suggest further investigation, if necessary. Conducting prosecution is a joint responsibility of the police and prosecutors. Whereas the prosecutors lead the evidence in the court of law, police officers assist them in briefing the witnesses and prepare them for arguments on points raised by the other side. C. Adjudication 1. Trial by Special Judges Only As per sec. 3 of the Corruption Act, only judges designated “Special Judges”, can conduct trial of cases falling under the Corruption Act. The government appoints Special Judges from serving senior judicial officers, designated as “Sessions Judge” (SJ) or “Additional Sessions Judge” (ASJ). The minimum qualification required to become an ASJ is to hold a degree in law and to have a minimum of seven years’ experience as a practicing advocate in a court of law. The selection is made through a competitive examination. ASJ are promoted to the rank of Sessions Judge after serving as an ASJ for about 15 to 20 years. The Corruption Act requires the Special Judges to hold trial on a day-to-day basis, as far as practicable. 2. Special Powers of Special Judges (i) Power to Grant Pardon to an Approver As per sec. 5, Special Judges can give a pardon to any person who has been involved in the commission of an offence under this Act with a view to obtaining his or her evidence, on the condition of him or her making a full and true disclosure of all the facts and circumstances related to commission of that offence and persons involved in the same, including him or herself. (ii) Freezing of Ill-gotten Properties during Trial Though there is a separate law, The Criminal Law (Amendment) Ordinance, 1944, which deals with freezing, seizure and confiscation of properties, which are proceeds of crime, sec. 5 of the Corruption Act empowers the Special Judge to exercise all the powers and functions under the said law during trial. IV. MECHANISM FOR SECURING INFORMATION OF CORRUPTION Collecting reliable information about corruption, especially about people serving in senior positions, is an important task and challenge. In CBI, we have certain set mechanisms to obtain such information and subject the same to verification. It is described in brief as follows. A. Complaints received from the Public Due to the high credibility enjoyed by CBI, it receives a large number of complaints from the public every day. Such complaints are scrutinized and taken up for verification if found to contain verifiable allegations. Often such verifications result in registration of crime pertaining to corruption. B. Information developed through Sources Great emphasis is laid on developing information from persons who want their identities to be kept secret, otherwise known as sources. The Whistle-Blowers (Protection in Public Interest Disclosures) Bill meant for providing statutory protection to such persons has been passed by the Indian Parliament and is likely to become a law soon. In the CBI, the secrecy of the identity of such people is scrupulously guarded and is not compromised under any circumstance. Information thus obtained is discretely verified and registered as a crime if a criminal case is made out. C. Cases referred by the Central Vigilance Commission (CVC) and the Chief Vigilance Officers (CVOs) of other Government epartments The Central Vigilance Commission is a statutory body which monitors corruption in governmental departments. It supervises the work of Chief Vigilance Officers of all the departments of government and issues guidelines to them. The CVC also receives complaints from the general public about corruption. It refers such complaints to the CBI for verification and investigation if found to contain verifiable allegations. The CVOs are in-house supervisors of government departments who monitor the conduct of personnel and enquire into complaints against them pertaining to corruption. If upon enquiry they conclude that a criminal case under the Corruption Act appears to have been made out, they refer the case to the CBI for investigation. D. Cases referred by High Courts and the Supreme Court Any citizen can file a petition, known as Public Interest Litigation, in the High Courts and the Supreme Court, alleging corruption in the public sector. If the High Courts and the Supreme Court find the allegations credible, they can refer such cases to the CBI for further enquiry or investigation. Many big cases of corruption have been successfully investigated by the agency in the past on such references from these courts. E. Annual Programme of Vigilance Work In compliance with a circular issued by the government of India in 1966, an annual exercise is carried out by the CBI to identify corruption-prone departments and individual corrupt public servants at the beginning of each year. The Public Utility Departments, with whom the general public comes into frequent contact, are given a special focus in these exercises. This task is carried out with the co-operation of the Chief Vigilance Officer of the concerned Department. During this exercise, a list, known as an “Agreed List” is prepared. The list shows the names of the public servants who are perceived to be corrupt but there is no tangible information or material regarding the date to initiate legal action against them. Such officers are put under surveillance during the course of the year and their activities are kept under covert watch. Special emphasis is put on collecting discreet information about various assets acquired by such public servants. This often results in action under the law against such corrupt acts by public servants. F. Use of Telephonic/Electronic Surveillance The legal provisions relating to telephonic or electronic surveillance under the Indian Telegraph Act 1885 are effectively used by the CBI to gather accurate information about corrupt activities of the public servants. After ascertaining details about various phone numbers and email identifications used by the public servant, permission of the competent authority is taken to put the same under surveillance. Information gathered during such surveillance has been successfully used in exposing big scams. V. PROBLEMS AND CHALLENGES Despite adequate laws to fight corruption in the public sector, it is still one of the biggest menaces Indian society must deal with. The Indian criminal justice system has been facing many problems and challenges in its fight against corruption, some of which are highlighted below. A. No Law to tackle Corruption in the Private Sector The Prevention of Corruption Act 1988 is the existing law in India dealing with offences relating to corruption. This law, however, was essentially enacted to take care of corruption cases in the public sector and by public servants, whereas in fact, there is widespread corruption in the private sector also which seriously hampers the overall growth and development of the country. After the liberalization of the Indian economy in the early 1990s, the private sector has expanded greatly. The problem of corruption in the private sector is increasing with the expansion of the private sector. Today it has assumed alarming proportions. It has become the single biggest menace to Indian society. Efforts are underway to enact laws to deal with corruption in the private sector as envisaged in the UNCAC. B. Inherent Delays in the Criminal Justice System The system is painfully slow and punishments are not swift. As explained earlier, sec. 19 of the Corruption Act requires prior permission of the authority competent to remove a public servant from his or her post before launching prosecution against him or her in court. This often delays the launch of a prosecution. Upon receiving reports from the investigating agencies seeking approval for a prosecution, the concerned authorities often take considerable time to grant such permission. Also, permission is sometimes denied on political and other grounds. The Corruption Act provides for trial of corruption cases under the act exclusively by the Special Judges. The number of Special Judges is highly insufficient compared to the number of corruption cases filed in their courts. As a result, these courts are overburdened and there is a large discrepancy in the number of cases disposed by the investigating agencies and the number of cases disposed by the courts, adding to the backlog each year. During trial of offences, adjournments are often taken or granted on various grounds. Further, the proceedings in the trial court are challenged at various stages by parties filing petitions in the same court as well as in higher courts. Appeals and revisions filed in higher courts against the order of the trial court often take years to be concluded. C. Hostile Witnesses In order to convict a corrupt public servant, the prosecution has to prove its case beyond doubt. This is a strict legal requirement as per the Indian Evidence Act, the general law on evidence in India. There is no exception to this requirement even for corruption cases. Prosecution has to depend heavily on the testimony of witnesses to prove its case beyond doubt. However, witnesses often do not support the prosecution case because of influence, allurement and intimidation from the other side. There is no witness protection scheme, nor are there provisions for quick and effective action against witnesses who become hostile. As a result, witnesses frequently become unco-operative and spoil the prosecution case. Punishments are, therefore, not swift and effective under the Corruption Act and don’t deter corrupt public servants. D. Ineffective Asset Recovery Though there are legal provisions for confiscation and recovery of property acquired as proceeds of crime, such recovery is not easy. Corrupt public servants often acquire properties with the proceeds of crime in the names of their friends, relatives, family members and other acquaintances. Therefore, it is not easy to prove in court that such properties are the proceeds of crime. Such properties are quite often held offshore under strict privacy laws and it is not easy to trace and recover them, especially in the absence of desired international co-operation. VI. CONCLUSION There are adequate laws in India to fight corruption in the public sector. The Prevention of Corruption Act 1988 is a comprehensive law which covers all possible acts pertaining to corruption and corrupt practices by public servants. There are laws relating to tracking, seizing, and confiscating proceeds of such crimes, both inside and outside the country. India has signed mutual legal assistance and extradition treaties with 20 and 25 countries respectively to facilitate international co-operation in the fight against corruption. Ratification of the UN Convention against Corruption by India will further strengthen its resolve to fight against corruption by providing and obtaining international co-operation. Despite all these measures and laws, the country is still not free from the scourge of corruption. Corruption is still one of the biggest impediments to extending the benefits of development and progress to the poorest of the poor. The Indian criminal justice system is facing many problems and challenges in its fight against corruption. At present, there is no law to deal with corruption in the private sector, which has grown in leaps and bounds in last two decades, as envisaged in the UNCAC. Offenders take advantage of the very strict requirements of Indian courts to prove every point beyond doubt. The system suffers from inherent delays; as a result punishment is not swift. Corruption is considered a ‘high profit-low risk’ activity by corrupt public servants. Recoveries of assets, which are proceeds of crime, remain a big challenge. Such assets are often held offshore and getting them back is a Herculean task, especially in the absence of desired international co-operation. The fight against corruption is, therefore, not an easy one. We need to join forces against this enemy, with all resources at our disposal to achieve better and more effective results. The United Nations Convention against Corruption can be seen as a watershed in the resolve of the international community to fight corruption. The provisions relating to asset recovery in the UNCAC are the most important, in my opinion. Effective use of the same by signatory countries will, therefore, go a long way to achieving better results in this regard. International co-operation to fight corruption as envisaged in the UNCAC is therefore inescapable and a requirement of the hour. P. Satyanarayana Murthy Vs. The District Inspector of Police and ANR. [Criminal Appeal No. 31 of 2009] AMITAVA ROY, J. 1. The instant appeal calls in question the judgment and order dated 25.4.2008 rendered by the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 262 of 2002, sustaining the conviction of the appellant under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Prevention of Corruption Act 1988 (for short hereinafter referred to as "the Act") and sentence thereunder, however setting aside his conviction and sentence under Section 7 of the Act. 2. We have heard Mr. A.T.M. Ranga Ramanujam, learned senior counsel for the appellant and Ms. Prerna Singh, learned counsel for the respondents. 3. The prosecution case stems from a complaint laid by one S. Jagan Mohan Reddy (since deceased) to the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool alleging that the appellant who, at the relevant time was the Assistant Director, Commissionerate of Technical Education, Hyderabad had on 3.10.1996 demanded by way of illegal gratification Rs. 1000/- for effecting renewal of the recognition of his (complainant) typing institute, being run in the name and style of Rama Typewriting Institute in Laxminagar B. Camp, Kurnool since 1992. The complaint disclosed that on negotiation, the demand was scaled down to Rs. 500/- and the appellant asked him (complainant) to meet him on 4.10.1996 in Room No. 68 of Meenakshi Lodge, Kurnool with the money demanded. Acting on the complaint, a case was registered and a trap was laid on 4.10.1996 and the tainted currency notes were recovered, in the process thereof, from the possession of the appellant. On completion of the investigation, charge- sheet was filed against the appellant, whereafter the charges under Sections 7 & 13(1)(d)(i) & (ii) read with Section 13(2) of the Act were framed against him to which he pleaded "not guilty". At the trial, the prosecution examined seven witnesses and also adduced documentary evidence in support of the charges. As the complainant- S. Jagan Mohan Reddy had expired prior thereto, he could not be examined by the prosecution. 4. After the closure of the evidence of the prosecution, the appellant was examined under Section 313 Cr.P.C. and was confronted with all the incriminating materials brought on record. He, however, denied the same. 5. The learned trial court, on an elaborate analysis of the evidence available, convicted the appellant under Sections 7 and 13(1)(d)(i) & (ii) read with Section 13(2) of the Act and sentenced him to undergo R.I. for one year on each count and to pay fine of Rs. 1000/-, in default to suffer S.I. for three months for each offence. The sentences of imprisonment were, however, ordered to run concurrently. 6. As adverted to hereinabove, the High Court in the appeal preferred by the appellant, while upholding his conviction under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act, did set at naught his conviction under Section 7 of the Act. The sentence qua his conviction under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act was, as a corollary, sustained. 7. The learned senior counsel for the appellant has insistently urged that the prosecution had failed to prove any demand for the alleged illegal gratification involved and, thus, the vitally essential ingredient of the offences both under Sections 7 and 13 of the Act being conspicuously absent, the appellant ought to have been acquitted of the charge on both counts. The learned senior counsel has maintained that even assuming without admitting that the recovery of the tainted notes from the appellant had been established, sans the proof of demand which is a sine qua non for an offence both under Sections 7 and 13 of the Act, the appellant's conviction as recorded by the High Court is on the face of the record unsustainable in law and on facts. Without prejudice to the above, learned senior counsel has asserted that the money shown to have been recovered from the possession of the appellant was by no means an illegal gratification demanded by him, but was towards fees for renewal of the recognition of the complainant's typing institute together with penalty and incidental expenses, and thus, his conviction under Section 13(1)(d)(i) & (ii)) read with Section 13(2) of the Act as sustained by the High Court, if allowed to stand, would result in travesty of justice. 8. Learned senior counsel for the appellant to buttress his contentions, placed reliance on the decision of this Court in B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55. 9. Learned counsel for the State, as against this, has assiduously argued that the evidence of the prosecution witnesses, taken as a whole, demonstrably proved the demand, receipt and recovery of the illegal gratification sought for and as such no interference with the appellant's conviction is warranted. According to the learned counsel, having regard to the office held by the appellant at the relevant point of time, he was even otherwise not authorized to receive any deposit towards the renewal of recognition of the complainant's typing institute and that the evidence adduced by the prosecution did prove the complicity of the appellant in the offence for which he has been charged, beyond a reasonable doubt. In reinforcement of her pleas, learned counsel has drawn our attention to the relevant excerpts of the evidence on record more particularly that of PW1- S. Udaya Bhasker and PW3-G. Sudhakar. 10. Learned counsel for the respondents sought to distinguish the decision rendered in B. Jayaraj (supra) contending that in the face of persuasive evidence of demand on record, the same is of no avail to the appellant. 11. The materials on record have been duly traversed by us in order to adequately appreciate and weigh the competing contentions. Though dealt with exhaustively by the two courts below, having regard to the profuse reference to the evidence on record made in the course of the arguments, we consider it to be apt to advert thereto in bare essentials and to the extent indispensable. Admittedly, the complainant S. Jagan Mohan Reddy, the then Principal of the Rama Typewriting Institute, Laxminagar, B. Camp, Kurnool could not be examined as a witness for the prosecution, as he had expired before the trial. To reiterate, in his complaint lodged with the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool Range, Kurnool on 3.10.1996, he alleged that on the same date, the appellant, who was then the Assistant Director, Commissionerate of Technical Education, Hyderabad, had visited his institute and had pointed out that because of his omission to file an application for renewal of recognition thereof for the year 1997, cancellation of recognition would ensue resulting in loss of seniority of the institute. According to the complainant, situated thus, he requested for the assistance of the appellant who assured that it would be possible only if he was paid Rs. 1000/-. According to the complainant, he pleaded his inability to pay such amount. On this, the appellant reduced his demand to Rs. 500/- and instructed him (complainant) to meet him on 4.10.1996 in Room No. 68, Meenakshi Lodge, Kurnool along with challan of Rs. 360/-, being Rs. 60 as renewal fee and Rs. 300 as penalty. The complainant, being disinclined to pay the illegal gratification as demanded, lodged a complaint with the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool and sought action against the appellant. 12. After registering the complaint, the investigating agency initiated a proceeding for laying a trap on 4.10.1996 at the venue indicated by the appellant. In the course of preparatory steps, five currency notes of denomination of Rs. 100/- were arranged on which phenolphthalein powder was applied and were handed over to the complainant to be paid to the appellant on demand. PW1-S. Udaya Bhaskar was identified to accompany the complainant as an aspiring owner of a new proposed typewriting institute. The members of the trap team were briefed accordingly and instructions were given to the complainant to flag a signal in time for the interception of the appellant after he had received the tainted notes. Accordingly, the complainant accompanied by PW1-S. Udaya Bhaskar went to the place agreed upon i.e. Room No. 68, Meenakshi Lodge, Kurnool on 4.10.1996 with the trap team waiting outside for the signal to intervene. According to the prosecution, the complainant and PW1-S. Udaya Bhaskar did meet the appellant in Room No. 68, Meenakshi Lodge, Kurnool and on reaching the room, the complainant gave one renewal application along with the challan to the appellant who enquired as to whether he (complainant) had brought the amount which he had directed him to bring on the previous day. On this, the complainant took out Rs. 500/- from the pocket of his shirt on which the phenolphthalein powder had been applied and handed over the same to the appellant. The prosecution version is that the appellant, accordingly, kept the amount in the pocket of his shirt and it was then on signal being received by the trap team, he was intercepted and apprehended with the money accepted by him. 13. PW1-S. Udaya Bhaskar has stated on oath that at the relevant point of time, he was the Assistant Engineer in Panchayat Raj Department, Orvakal and that as planned by the investigating agency to entrap the appellant, he along with the complainant had gone to room No. 68, Meenakshi Lodge, Kurnool on 4.10.1996 for meeting the appellant. Both of them entered into the room of appellant, whereupon the complainant handed over one renewal application along with the challan to the appellant. This witness stated that on this, the appellant enquired as to whether the complainant had brought the amount which he had directed him to bring on the previous day. The witness stated that the complainant then took out the currency notes amounting to Rs. 500/- from the pocket of his shirt as arranged and did hand over the same to the complainant, who after counting the same, kept those in the pocket of his shirt. The witness also testified, that he then told the appellant that he too had started a typing institute and would require a license. The appellant, in reply, asked him to do the needful as others had been doing. According to this witness, while he was talking to the appellant, as previously arranged, the complainant signalled the trap team, whereupon the appellant was apprehended and the currency notes were recovered from him. On verification, the said notes tallied with those which had been decided to be used in the trap operation. The fingers of the hands of the appellants, when dipped in the sodium carbonate solution also turned pink. The pocket of the shirt of the appellant, as testified by this witness, also turned pink when rinsed in sodium carbonate solution. 14. The evidence of PW3-S. Sivaiah Naidu is to the effect that he, on 6.8.1996 had made an application to the Technical Board for recognition of his institute, whereafter on 3.10.1996, the appellant in the capacity of Assistant Director of Technical Education, inspected his institute and verified all records. According to this witness, when he enquired about the recognition certificate, the appellant stated that unless some amount was paid to him way of gratification, he would not issue the recognition certificate. The witness alleged that he too was asked to meet the appellant in Room No. 68, Meenakshi Lodge,Kurnool at 8.30 P.M. 15. PW7-Iliyase Sait, who at the relevant time was posted as Deputy Superintendent of Police, Kurnool Range, Kurnool, in his evidence narrated in detail the steps taken to arrange for the trap to nab the appellant, instructions to the members of the trap team, recovery of five currency notes amounting to Rs. 500/- smeared with phenolphthalein powder from the possession of the appellant and submission of charge-sheet against him on completion of the investigation. 16. The evidence of other witnesses being not essentially related to the aspect of demand, receipt and recovery of the amount of illegal gratification with which the appellant had been charged, does not call for a detailed reference. 17. It is expedient at this juncture to set out the relevant extracts of Sections 7 (as it stands today) and 13 of the Act under which the appellant had been charged. "7. Public servant taking gratification other than legal remuneration in respect of an official act: Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine." --- --- --- --- --- --- --- --- "13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct,- --- --- --- --- (d) if he,- by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;" --- --- --- --- --- 18. This Court in A. Subair vs. State of Kerala (2009)6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. 19. In State of Kerala and another vs. C.P. Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. 22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. 23. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs. 500/- from the pocket of his shirt and handed over the same to the appellant. Though, a very spirited endeavour has been made by the learned counsel for the State to co-relate this statement of PW1- S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW1- S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Section 7 or 13(1)(d)(i) & (ii) of the Act has been proved. True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3.10.1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 4.10.1996. However, the testimony of PW1- S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or 13(1)(d)(i) & (ii) of the Act against the appellant has been proved beyond reasonable doubt. 24. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i) & (ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) & (ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification. 25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 26. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order of the High Court is hereby set-aside. The appellant is on bail. His bail bond stands discharged. Original record be sent back immediately. .......................CJI. (H.L. DATTU) .........................J. (V. GOPALA GOWDA) .........................J. (AMITAVA ROY) NEW DELHI; SEPTEMBER 14, 2015. Selvaraj Vs. State of Karnataka [Criminal Appeal No.1172 of 2008] ARUN MISHRA, J. 1. The appeal has been preferred as against the judgment and order convicting and sentencing the appellant for commission of offence punishable under section 5(1)(d) of the Prevention of Corruption Act, 1947, thereby reversing the judgment of acquittal passed by the trial court and sentencing him for three months with a fine of Rs.50,000/- and in default to undergo SI for six months. 2. Briefly, the prosecution case is that the appellant was working as First Division Assistant in the District Treasury, Hassan. Peter Philip, CW- 1 contacted him to secure refund of loan subsidy in a sum of Rs.13,990/-. He met the accused on 28.1.1988 who demanded illegal gratification of Rs.200/-. As the complainant CW-1 did not like it, he contacted the Lokayukta Police on 1.2.1988 and lodged a complaint. On the said date itself, trap was arranged. The Investigating Officer (IO) secured presence of PW-1 and PW-2, the two officials of the Zila Parishad to act as trap witnesses and smeared phenolphthalein powder on the bait money and handed over the same to CW-1 with instruction to pay the same on demand. PW-2 was instructed to act as a shadow witness. 3. Peter Philip, CW-1, went along with PW-2 to the said office. CW-1 requested the accused for passing the bill. On demand, CW-1 paid the money to the accused who kept the same under the book on his table. PW-2 witnessed the transaction. On a signal being given by CW-1, the IO along with PW-1 came to the scene, phenolphthalein test was done on hand wash, colour of the solution turned pink, the solution was collected in a separate bottle and sealed, the money was recovered from the possession of the accused as per the seizure memo. 4. The complainant CW-1 died before the commencement of the trial. The prosecution examined, in all, 9 witnesses, 23 documents were exhibited and 8 material objects were submitted. The Special Judge, Hassan, vide judgment and order dated 16.4.1999 acquitted the accused. On appeal, the High Court has reversed the conviction, hence, the appeal has been filed in this Court. 5. It was submitted by learned counsel appearing on behalf of the appellant that several material circumstances were considered by the learned Trial Judge which have not been adverted to by the High Court while reversing the judgment of acquittal. Thus, an illegality has been committed. The evidence which has been adduced could not be said to be reliable. The inherent improbabilities have been ignored and the material contradictions have been lightly brushed aside. There is no assessment of the evidence made by the High Court while reversing the judgment of acquittal. 6. Learned counsel appearing on behalf of the State has supported the judgment and contended that the High Court has given adequate reasons so as to discard the trivial contradictions. The prosecution has proved the guilt beyond the periphery of doubt. No case for interference in the appeal is made out. After hearing learned counsel for the parties at length, and going into the oral and documentary evidence on record, we are of the considered opinion that in the peculiar facts and circumstances of the instant case, the judgment and order of acquittal ought not to have been interfered with by the High Court. 7. The trial court has given varied reasons while acquitting the appellant. The trial court was cautious in considering the evidence in minute details as the complainant CW-1, Peter Philip, had died who could not be examined and subjected to cross-examination by the accused. Particularly, when the complainant had died and could not be subjected to cross-examination, in our opinion, quality and credibility of the evidence adduced by the prosecution cannot be dispensed with. 8. The accused was holding the post of First Division Assistant. He had been transferred on promotion as Head Accountant in Sub-Treasurey at Sagar. He stood relieved on 30.1.1988 before the date of incident. The accused was not working as First Division Assistant in the District Treasury Office at Hassan on 1.2.1988. The trial court has relied upon the relieving order Ex. D-1. The trial court has also observed that K.C. Rajan, PW-4, has admitted that the accused had been promoted and transferred as Head Accountant and was relieved on 30.1.1988. However, he had not handed over the charge, and on 1.2.1988 the accused did not mark his attendance as he was under transfer. The accused was supposed to hand over charge to one Shivaramaiah who was not available on 1.2.1988 as he had gone to attend a departmental examination. On 1.2.1988, the accused was preparing 'charge list' in the office. Relying upon Ex. P-8 the trial court came to the conclusion that on transfer of the accused on 1.2.1988, G.T. Shivaramaiah was placed in charge of the work which used to be looked after by the accused. Charge list has not been produced in case it was prepared by the accused on 1.2.1988. The accused on 1.2.1988 was not competent to transact any official business. Relying upon the work distribution register, attendance register and the relieving order, the version of K.C. Rajan, PW-4, has not been accepted by the trial court. It was also opined that the surrounding circumstances did not lend credibility to the prosecution version. 9. The trial court has also given reason for acquittal that K.C. Rajan, PW-4 was competent to give final clearance. The accused was not the final authority. There was some objection by the District Treasury Office. The bill was again presented for clearance to the Treasury on 21.1.1988. Thus, it was doubted that the accused had deliberately withheld the bill and demanded illegal gratification of Rs.200/- from Peter Philip, CW-1, on 28.1.1988. The same has been found to be improbable. Cogent evidence was required in the circumstances. The trial court has found that even before recording the First Information Report, the IO had sent for and secured the presence of the witnesses. Thus, the FIR was based upon the deliberations between Peter Philip, CW-1 and L.Somasekhar, PW-8. The trial court also found that there was a discrepancy from where the money was recovered; whether it was lying on the table or inside the drawer of the table. It was held that the money was not recovered from the possession of the accused. The colour of the wash in MO-4 was not pink but contained dirty particles. The accused was not in possession of the subsidy bill. Thus, there was no reason to give him the money. The prosecution case that the accused was working as First Division Assistant on 1.2.1988 and was in-charge of the billing section, has not been found to be proved. 10. The High Court while reversing the judgment of acquittal in a short and cryptic judgment, has not cared to go into the various reasoning employed by the trial court. It has gone into only two factual aspects; firstly, into discrepancy as to time when the FIR was registered and witnesses were summoned, which was found not to be material one; and secondly, it observed whether the money was recovered from the drawer of the table or it was lying on the table, was insignificant as witnesses might not have remembered it due to lapse of time, which are the only reasons attributed for reversing the judgment of acquittal. 11. It is apparent that the High Court has failed in its duty to come to the close quarter of the reasoning employed by the trial court while reversing the judgment of acquittal. Appreciation of evidence to hold it to be credible was required which has not been done by the High Court at all. In a cursory manner without re-appraisal of the evidence and probabilities, the judgment of acquittal has been reversed. Though the High Court has the power to re-appraise the evidence in appeal against acquittal but that has not been done. It is incumbent upon the High Court while reviewing the evidence and to reverse the order of acquittal to consider all matters on record including the reasons given by the trial court in respect of the order of acquittal and should consider all the circumstances in favour of the accused which has not been done. In Kanu Ambu Vish v. The State of Maharashtra [1971 (1) SCC 503], this Court has laid down thus : "15. On a consideration of the evidence, we think that the reversal of the order of acquittal by the High Court was not warranted. Though the High Court has power on a review of the evidence to reverse the order of acquittal, yet in doing so it should not only consider all matters on record including the reasons given by the Trial Court in respect of the order of acquittal, but should particularly consider those aspects which are in favour of the accused and ought not also to act on conjunctions or surmises nor on inferences which do not arise on the evidence in the case. In the view we have taken, the Appeal is allowed, the judgment of the High Court reversed and the Appellant acquitted. The Appellant being on bail, his bail bond is cancelled." 12. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [2002 (9) SCC 639] has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus : "9. We have, with the assistance of learned counsel for the parties, carefully perused the evidence, particularly, the evidence of PW-19, PW-27, PW-30, PW-31, besides PW-34. In our opinion, the appreciation of evidence by the trial court of these witnesses is sound and proper. On the other hand, the High Court has fallen into an error by treating the case as one under Section 13(1)(e) read with Section 13(2) of the 1988 Act and by proceeding to hold the appellant guilty by invoking the Explanation to Section 13(1)(e), which Explanation is conspicuous by its absence insofar as Section 5(1)(e) of the Act is concerned. We are unable to appreciate the submission of learned counsel for the State that PW-31, being the mother-in- law of the appellant who had supported the explanation offered by the appellant regarding receipt of Rs. 50,000/- and Rs. 40,000/- by him from her should not be believed. She is a prosecution witness. She was never declared hostile. The prosecution cannot wriggle out of her statement. As a matter of fact, the main sustenance is sought by the High Court of its view on the basis of her evidence. The explanation offered by the appellant has not been accepted by the High Court by invoking proviso to Section 13(1)(e). The High Court has opined that since the amount allegedly received by the appellant from his mother-in-law had "not been intimated in accordance with the provisions of law", his explanation is not acceptable and the appellant would be deemed to have committed criminal misconduct within the meaning of Section 13(2) of the 1988 Act. We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal." Similar is the decision of this Court in State through Inspector of Police, A.P.v. K. Narasimhachary [2005 (8) SCC 364] : "24. Having regard to the facts and circumstances of this case, we are of the opinion that two views are possible and the view of the High Court cannot be said to be wholly improbable; it cannot be said, in view of the discussions made hereinbefore, that the materials brought on record would lead to only one conclusion i.e. the guilt of the accused. The impugned judgment, therefore, is sustained." 13. Coming to the question whether the view taken by the trial court while acquitting the accused was probable, we find that in view of the fact that complainant Peter Philip, CW-1 died before the trial, as such he was not available for cross-examination with respect to the facts which were in his knowledge as to the demand of bribe and its payment. We have to carefully look into the other evidence available. In the absence of the complainant, the onus lay upon the prosecution to adduce credible evidence and to prove the guilt beyond the periphery of doubt. K.M.Eregowda, PW-2, had stated that 10 to 12 other officials were sitting in the same room in which bribe was paid. Taking of bribe in the presence of 10 to 12 other officials of the Treasury Office is quite improbable. It assumes significance in the circumstances from which place the money was recovered; whether it was from the possession of the accused. PW-1 has stated that he found currency notes on the table, and the accused was standing behind the table. Whereas K.N. Eregowda, PW-2, has stated that the currency notes were kept by the accused beneath the book on the table. Another witness L.Somashekara, PW-8, IO, has stated that he recovered the money from the drawer of the table. The versions given by the three witnesses are different from each other. Even if we ignore the contradictions between the versions of PW-1 and PW-2, the contradiction with respect to place of recovery of money whether it was inside the drawer of table or was lying on the table beneath the book is material one and could not have been ignored. Apart from that, we find that the IO has stated that he had seized Ex. P- 14, release order of subsidy on 1.2.1988 and it had been mentioned thereon that it had been paid. As subsidy stood paid, it was incumbent upon the prosecution to prove when, in fact, it was paid. Whether it was paid on 1.2.1988 or earlier, which fact has not been proved as the very basis of the crime is release of subsidy, for which bribe was being demanded by the accused. Though it is not necessary to prove whether the accused was in a position to do the work for which he has demanded the bribe, or was having the competence to do the work for which he has demanded the bribe, however, in the peculiar facts of the instant case when the accused was under transfer, he had been relieved on 30.1.1988 and while Mr. G.T. Shivaramaiah was given the charge of the post accused was occupying, he was not on duty on 1.2.1988. Even if we accept that he was preparing the 'charge list' on 1.2.1988, which has not been produced, coupled with the fact that the complaint was lodged on the same date and it appears even before registration of the FIR, trap witnesses were called, all these facts improbabilised the version of the prosecution and the trial court had opined in the circumstances that there were some deliberations before recording the FIR. Since the complainant was not available for cross- examination, the view taken by the trial court could not be said to be the one which was not possible in the prevailing scenario. Even if two views are possible on the facts, one taken by the trial court did not call for interference, especially in appeal against acquittal. 14. In A. Subair v. State of Kerala [2009 (6) SCC 587], this Court has laid down that illegal gratification has to be proved like any criminal offence and when the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest the conviction on such evidence. This Court while recording acquittal, has laid down thus : "31. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt." 15. in State of Kerala & Anr. v. C.P. Rao [2011 (6) SCC 450], it has been laid down that recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of the testimony of the complainant regarding the demand of bribe and when the complainant is not available for examination during the trial, court has to be cautious while sifting the evidence of other witnesses. Charge has to be proved beyond reasonable doubt. This Court has laid down thus : "12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in para 28 of A. Subair (supra) made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court. 13. In coming to this conclusion, we are reminded of the well settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court is an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan [1961 (3) SCR 120]. At page 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows : "9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case [(1934-34) 61 I.A. 398] afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified." 16. In G.V. Nanjundiah v. State (Delhi Administration) [1987 (Supp) SCC 266], it was laid down that the allegation of bribe taking should be considered along with other material circumstances. Demand has to be proved by adducing clinching evidence. When the fact indicating that the complainant was aware of the amount, was not withheld by the accused, this Court disbelieved the allegation of the complainant meeting the accused and presence of strangers at the time of giving bribe was held to be unnatural. 17. Thus, acceptance of the bribe has not been established by adducing cogent evidence. In view of the circumstances discussed above, the view taken by the trial court was a plausible one and could not have been interfered with by the High Court, that too without coming to the close quarters of the reasoning and re-appraisal of the evidence. The judgment of the High Court is not only cryptic but also no attempt has been made to look into the evidence - both oral and documentary. Thus, we have no hesitation in setting aside the judgment and order passed by the High Court and restore that of the trial court. The appeal is allowed. ...................CJI. (H.L. Dattu) .....................J. (Arun Mishra) .....................J. (Amitava Roy) New Delhi; August 18, 2015. Krishan Chander Vs. State of Delhi [Criminal Appeal No. 14 of 2016 arising out of SLP (CRL.) No.703 of 2015] V. GOPALA GOWDA, J. Leave granted. This criminal appeal is directed against the impugned judgment and order dated 7.11.2014 passed by the High Court of Delhi at New Delhi in Crl. Appeal No. 634 of 2008 wherein the High Court has dismissed the appeal filed by the appellant and upheld the order of conviction and sentence passed against the appellant by the court of Special Judge, Delhi (for short the "trial court") in CC No. 21 of 2005. The trial court convicted the appellant vide its judgment dated 14.7.2008 for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short "the PC Act") and vide order dated 15.7.2008 sentenced him to undergo rigorous imprisonment for two years with fine of Rs.5,000/- for the offence punishable under Section 7 of the PC Act and in default to undergo simple imprisonment for two months. For the offences punishable under Section 13(2) of the PC Act, he was further sentenced to undergo rigorous imprisonment for two years with fine of Rs.5,000/- and in default to undergo simple imprisonment for two months. Both the sentences imposed upon him for the above said offences were to run concurrently. Brief facts of the case are stated hereunder to appreciate the rival legal contentions urged on behalf of the parties:- The prosecution case before the trial court was that on 29.7.2004, an FIR No. 662 of 2004 was registered at Police Station, Nangloi, Delhi under Sections 279 and 337 of Indian Penal Code (for short "IPC") against one Krishan Kumar (PW-9), the brother of the complainant-Jai Bhagwan (PW-2). Krishan Kumar was arrested on 29.7.2004 in connection with the alleged offences referred to in the above said FIR. The complainant-Jai Bhagwan (PW-2) had approached Assistant Sub-Inspector (ASI) Ranbir Singh (PW-11), the Investigating Officer of the said case for release of Krishan Kumar on bail. The Investigating Officer is stated to have accepted the bail bond for release of Krishan Kumar and directed the appellant (a constable at the said Police Station) to release him on bail in connection with the alleged offences referred to supra. The appellant alleged to have demanded a bribe of Rs.5000/- from the complainant-Jai Bhagwan for releasing his brother Krishan Kumar on bail. It is alleged that under duress, complainant-Jai Bhagwan (PW-2) paid Rs.4,000/- as bribe to the appellant. Thereafter, Krishan Kumar (PW-9) was released on bail and the appellant asked the complainant-Jai Bhagwan to pay him the balance amount of Rs.1,000/- on 30.7.2004 between 6.00 p.m. and 7.00 p.m. at Ditchau Kalan Bus Stand, Najafgarh. The complainant-Jai Bhagwan (PW-2) approached the office of Anti Corruption Branch on 30.07.2004 and made a written complaint regarding the demand of bribe by the appellant from him. The said written complaint was recorded by Sunder Dev (PW-12) in presence of Anoop Kumar Verma (PW-6). The complainant-Jai Bhagwan took with him two Government Currency notes (for short the "GC notes") in the denomination of Rs.500/- each and handed over the same to Inspector Sunder Dev (PW-12) who noted down the serial numbers of the said GC notes. Thereafter, phenolphthalein powder was applied to the said GC notes and recorded in the pre-raid proceedings and its effect was demonstrated. The tainted GC notes were given to the complainant-Jai Bhagwan, who kept the same in the left pocket of his shirt. As per the instructions, panch witness- Anoop Kumar Verma (PW-6) was directed to remain close to complainant-Jai Bhagwan to overhear the conversation between the complainant-Jai Bhagwan and the appellant. He was further instructed to give a signal to the raiding party by hurling his hand over his head when bribe amount had actually been given by the complainant-Jai Bhagwan. On 30.07.2004, at around 4.30 p.m., the complainant-Jai Bhagwan, panch witness- Anoop Kumar Verma, Inspector Sunder Dev (PW-12), Sub-Inspector B.S. Yadav (PW-10) and Constable Rajiv Kumar (PW-5) along with other members of the raiding party left for Ditchau Kalan Bus Stand in a government vehicle and reached the spot at around 5.45 p.m. At around 7.00 p.m., appellant reached the spot and had conversation with complainant-Jai Bhagwan. Both the complainant and the appellant moved towards a water trolley, had water and again continued their conversation. Panch witness- Anoop Kumar Verma followed them. After sometime, the complainant-Jai Bhagwan took out the tainted GC notes from the left pocket of his shirt and gave them to the appellant which he took with his right hand and kept the same in the left pocket of his shirt. Soon after the said transaction, panch witness- Anoop Kumar Verma gave the pre-determined signal to the raiding team upon which the team rushed to the spot. Anoop Kumar Verma informed the raiding team that the appellant had demanded and accepted the bribe money of Rs.1000/- from the complainant-Jai Bhagwan. Inspector Sunder Dev introduced himself as Inspector from Anti Corruption Branch to the appellant upon which he immediately took out the tainted GC notes from the pocket of his shirt with his left hand and threw the same on the ground. The said GC notes were then picked up from the ground by panch witness-Anoop Kumar Verma on the instructions of Inspector-Sunder Dev. The serial numbers of the recovered GC notes were matched with those noted in the pre-raid proceedings. The wash of right and left hand of the appellant as well as the wash of left pocket of his shirt was taken in colorless solution of sodium carbonate which turned pink. The solution was transferred into clean glass bottles which were sealed and labeled. Thereafter, the appellant was arrested and FIR No. 36 of 2004 was registered against him for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the PC Act. The learned Special Judge after examining the evidence on record convicted the appellant vide its judgment dated 14.7.2008 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act and vide order dated 15.7.2008 sentenced him to undergo rigorous imprisonment for two years with fine of Rs.5,000/- for the offence punishable under Section 7 of the PC Act and in default to undergo simple imprisonment for two months. For the offence punishable under Section 13(2) of the PC Act he was further sentenced to undergo rigorous imprisonment for two years with fine of Rs.5,000/- and in default to undergo simple imprisonment for two months. Both the sentences imposed upon him for the above said offences were to run concurrently. Aggrieved by the decision of the learned Special Judge, the appellant filed Crl. Appeal No.634 of 2008 before the High Court of Delhi at New Delhi urging various grounds. The High Court vide its judgment and order dated 07.11.2014 upheld the decision of the learned Special Judge. The correctness of the same is questioned in this appeal urging various grounds. Mr. Sidharth Luthra, the learned senior counsel on behalf of the appellant contended that the High Court has failed to appreciate the fact that Krishan Kumar (PW-9) at the time of occurrence was already released on bail in connection with the case registered in FIR No. 662 of 2004 by the appellant as per the directions of Ranbir Singh, ASI (PW-11). Thus, the demand of bribe money of Rs.1000/- by the appellant from the complainant- Jai Bhagwan is highly improbable. It was further contended by him that the demand of illegal gratification by the accused is a sine qua non for constitution of an offence under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. A mere production of the tainted money recovered from the appellant along with positive result of phenolphthalein test, sans the proof of demand of bribe is not enough to establish the guilt of the charge made against appellant. In support of the above legal submission, he placed reliance upon the judgments of this Court in the cases of B. Jayaraj v. State of Andhra Pradesh[1], A. Subair v. State of Kerala[2] and State of Kerala & Anr. v. C.P. Rao[3], wherein this Court, after interpreting Sections 7 and 13(1)(d) of the PC Act, has held that the demand of bribe money made by the accused in a corruption case is a sine qua non to punish him for the above said offences. The learned senior counsel has also placed reliance upon the three Judge Bench decision of this Court in the case of P. Satyanarayana Murthy v. The Dist. Inspector of Police, State of Andhra Pradesh & Anr.[4], in which I was one of the companion Judges, wherein this Court, after referring to the aforesaid two Judge Bench judgments on the question of necessity of demand of bribe money by the accused, has reiterated the view stated supra. It was further contended by him that the High Court has failed to appreciate the fact that the complainant-Jai Bhagwan turned hostile during his examination before the trial court and did not support the prosecution case that the demand of Rs.1000/- as illegal gratification was made by the appellant from him for release of Krishna Kumar (PW-2) on bail. It was further contended by the learned senior counsel that the High Court has failed to re-appreciate the evidence on record that Panch witness- Anoop Kumar Verma was directed by the official of Anti Corruption Branch to remain close to the complainant-Jai Bhagwan in order to hear the conversation and see the transaction between the appellant and the complainant-Jai Bhagwan. He further submitted that the learned Special Judge as well as the High Court have arrived at an erroneous finding without considering the fact that the appellant after reaching the spot walked with the complainant-Jai Bhagwan for about 15 to 20 steps while conversing with each other. Thereafter, both moved towards water trolley and after taking water proceeded ahead. Around that time the complainant- Jai Bhagwan took out the tainted GC notes from his pocket and gave it to the appellant. From the said evidence, it is clear that panch witness- Anoop Kumar Verma did not hear the conversation between the appellant and the complainant-Jai Bhagwan. Therefore, there was no occasion to reach the conclusion that the appellant demanded any bribe from the complainant-Jai Bhagwan. He further contended that Ranbir Singh, ASI who was Investigating Officer in the case in which the arrest of Krishan Kumar was made, accepted his bail bond and directed the appellant to release him. It is an admitted fact that Krishan Kumar was released on bail in the presence of and as per the directions of Ranbir Singh, ASI. Therefore, there was no occasion for the appellant to demand any bribe money from the complainant-Jai Bhagwan. It was further contended that the High Court has failed to appreciate the fact that the alleged demand and the acceptance of amount of Rs. 1000/- is not corroborated by any independent witness despite the fact that the transaction alleged to have taken in a public place. On the other hand, Mr. P.S. Patwalia, the learned Additional Solicitor General (ASG), on behalf of the respondent-State sought to justify the impugned judgment and order passed by the High Court which is on proper appreciation of evidence on record and it is well reasoned and therefore not vitiated in law. Hence, he would submit that no interference with the same is required by this Court in exercise of its appellate jurisdiction. He has submitted that the High Court has rightly re-appreciated the evidence of the complainant-Jai Bhagwan and other prosecution witnesses and concurred with the findings recorded on the charges. Further it was submitted by him that the trial court while appreciating the evidence of the complainant-Jai Bhagwan relied upon the decision of this Court in the case of Sat Paul v. Delhi Administration[5], paragraphs 41 and 51 of which decision in recording the finding on the charges against the appellant, are extracted hereunder: "41. The fallacy underlying this view stems from the assumption that the only purpose of cross-examination of a witness is to discredit him; it ignores the hard truth that another equally important object of cross- examination is to elicit admissions of facts which would help build the case of the cross-examiner. When a party with the leave of the court, confronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is not deliberate but is due to faulty memory or a like cause, there is every possibility of the witness veering round to his former statement. Thus, showing faultness of the memory in the case of such a witness would be another object of cross- examining and contradicting him by a party calling the witness. In short, the rule prohibiting a party to put questions in the manner of cross- examination or in a leading form to his own witness is relaxed not because the witness has already forfeited all right to credit but because from his antipathetic altitude or otherwise, the court feels that for doing justice, his evidence will be more fully given, the truth more effectively extricated and his credit more adequately tested by questions put in a more pointed, penetrating and searching way. xx xx xx 51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto." It was further submitted that the trial court by placing reliance upon the Sat Paul's case (supra) found a part of the complainant-Jai Bhagwan's testimony reliable and held that the demand of bribe money by the appellant from the complainant-Jai Bhagwan to release his brother Krishan Kumar (PW- 9) can be said to be proved. He has placed reliance on the following finding and reasons recorded by the trial court, which relevant portion from para 16 reads thus: "16...It is true that complainant has not testified entirely in terms of his statement recorded u/s 161 Cr.P.C and he was declared hostile and was cross examined with the leave of the court. But simply because he did not testify strictly as per the prosecution case does not mean that his statement is altogether effaced from the record." Therefore, he would submit that the decision of the trial court on the charges framed against the appellant is based on proper evaluation of the evidence on record which has been rightly accepted by the High Court. Therefore, the same cannot be termed as erroneous in law and need not be interfered with by this Court in exercise of its appellate jurisdiction. It was further contended by him that though the complainant-Jai Bhagwan turned hostile witness and he has deposed before the trial court by stating that he had inserted the tainted GC notes in the left pocket of appellant's shirt. The trial court has held that evidence of Anoop Kumar Verma and inspector-Sunder Dev have supported the case of the prosecution who have demolished the version given by the complainant-Jai Bhagwan (PW-2) in his examination-in-chief. He has further submitted that as far as proof of demand of Rs.1000/- as illegal gratification made by the appellant is concerned, the trial court has rightly recorded the finding of fact holding that the appellant was caught red-handed accepting the bribe money at the Ditchau Kalan Bus Stand at Najafgarh and this evidence was sufficient enough to show that the complainant-Jai Bhagwan (PW-2) was asked by the appellant to bring the said amount as illegal gratification for having released Krishan Kumar (PW-9) on bail. We have carefully heard Mr. Sidhartha Luthra, the learned senior counsel on behalf of appellant and Mr. P.S. Patwalia, the learned Additional Solicitor General on behalf of respondent-State. On the basis of factual and legal aspects of the case and evidence on record produced in the case, it is clear that the High Court has recorded the concurrent findings on the charges framed against the Appellant in the impugned judgment and order. It has also failed to re-appreciate the evidence on record properly and consider the law on the relevant aspect of the case. Therefore, the said findings are not only erroneous in law but also suffer from error in law. Hence, the same is liable to be set aside. We are of the view that as the complainant-Jai Bhagwan in his examination- in-chief before the trial court has categorically stated that it was Ranbir Singh, ASI (PW-11) who demanded Rs.5000/- for release of his brother, Krishan Kumar (PW-9) in connection with the offences registered against him in FIR No.662 of 2004, the trial court has wrongly accepted a part of testimony of the complainant-Jai Bhagwan while recording such findings on the charges to convict the appellant when there is nothing on record to show that it is the appellant who had demanded bribe money from the complainant-Jai Bhagwan. In his examination-in-chief before the trial court, he categorically stated thus :- "......One Police Officer who was in civil uniform, who was the IO of that case, met me in the Police station told me that I would have to spend Rs.5000/- for the bail of my brother......On the directions of that IO, I had given Rs.4000/- to accused Krishan on account of duress. That IO asked me that he would send accused Krishan to collect balance amount of Rs.1000/- to Najafgarh." During the trial, the said witness did not support the prosecution version and therefore he was declared as hostile witness and thereafter, he was cross-examined by Mr. Alok Saxena, the learned Additional Public Prosecutor to the following effect: "I did not mention in my complaint that one ASI Ranbir Singh asked Constable Krishan Kumar to release my brother and he himself went for some other work and I requested Constable Krishan Kumar to release my brother and he demanded Rs.5000/- from me for releasing my brother (confronted with portion A to A of his complaint Ex. PW2/A......It is incorrect to suggest that accused Krishan Kumar had demanded Rs.5000/- from me and today I am giving a false exception that one IO had demanded Rs.5000/- from me in order to save the accused......I did not tell to the police that after receiving signal from the panch witnesses, Raid Officer came near me and challenged the accused that he had taken Rs.1000/- as bribe from me on which accused became perplexed and he took out those treated GC notes from his pocket and threw the same on the ground (confronted with portion B to B of his statement-ExPW-2/H recorded). He has further stated that: "It is wrong to suggest that accused Krishan had accepted bribe from me in his right hand and kept the same in his pocket and after seeing raiding party. It is further wrong to suggest that I am deposing falsely." The High Court has also erroneously appreciated the same and held thus: "23. ...As regards the demand of bribe of Rs.1000/- its conscious acceptance by the appellant, as already noticed, has been proved by PW-6 and fully corroborated by PW-12." Adverting to the evidence of Ranbir Singh, ASI (PW-11) who is the Investigation Officer in the above case registered against Krishan Kumar; in his examination-in-chief before the trial court, he stated as under :- "......After getting Sri Kishan medically examined, the accused brought him to PS Nangloi. No surety of Sri Kishan was present in the PS at that time. After about one hour one Jai Bhagwan brother of Sri Kishan came to P.S. Nangloi and presented the bail bond of his brother Sri Krishan. I accepted the bail bond of Sri Kishan at 10.00 pm and gave instruction to the accused to release Sri Kishan. I reported back at P.S. Nangloi at 11.55 pm and made the entry vide DD NO. 29/A dated 29.7.2004. I also recorded about the arrest and release of Sri Kishan in this very DD, although I accepted the surety bond of Sri Kishan in this very DD, although I accepted the surety bond of Sri Kishan at 10.00 PM on 29.7.2004." From the aforesaid admitted facts stated in his statement of evidence, it is very clear that it was Ranbir Singh, ASI, who directed the appellant to release Krishan Kumar. Therefore, at the time of his releasing on bail, there was no occasion for the appellant to demand bribe money from the complainant-Jai Bhagwan as he was already released on bail in the above criminal case by Ranbir Singh, ASI, (PW-11). We are unable to agree with the above contentions urged by the learned ASG that the complainant-Jai Bhagwan turned hostile witness in the case before the trial court, however, the statement of evidence of Anoop Kumar Verma (PW-6) and inspector-Sunder Dev (PW-12) was sufficient to support the case of the prosecution with regard to acceptance of bribe amount by the appellant from Jai Bhagwan (PW-2). This Court is of the view that whenever a prosecution witness turns hostile his testimony cannot be discarded altogether. In this regard, reliance is placed by the ASG on the decision of this court in the case of Rabindra Kumar Dey v. State of Orissa[6]. The relevant para 12 of the aforesaid case reads thus: "12. It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether. In Bhagwan Singh v. State of Haryana Bhagwati, J., speaking for this Court observed as follows: "The prosecution could have even avoided requesting for permission to cross- examine the witness under Section 154 of the Evidence Act. But the fact that the court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence." (emphasis supplied) However, in the instant case, from the material on record, it is amply clear that the complainant-Jai Bhagwan turned hostile on two important aspects namely, demand and acceptance of bribe by the appellant which is sine qua non for constituting the alleged offence under Sections 7 and 13(1)(d) read with 13(2) of the PC Act convicting the appellant and sentencing him for the period and fine as mentioned above. As far as the evidence of Panch witness- Anoop Kumar Verma (PW-6) is concerned, in his examination-in-chief, he stated thus: "...Thereafter, the complainant and the accused walked for 15-20 steps and had some talk with the complainant and the complainant took out those GC notes from his pocket and gave in the right hand of accused which he kept in the left pocket of his shirt..." Anoop Kumar Verma (PW-6) in his examination-in-chief has not deposed as to the exact conversation that took place between the appellant and the complainant-Jai Bhagwan at the time when he had approached him to give bribe money. He has simply mentioned about "some talk" had taken place between them but has failed to bring to light the factum of demand of bribe money by the appellant from the complainant-Jai Bhagwan. Thus, it is amply clear that panch witness- Anoop Kumar Verma did not hear the conversation between the appellant and the complainant-Jai Bhagwan. Therefore, there was no occasion for both the courts below to reach the conclusion that the appellant demanded any bribe from the complainant-Jai Bhagwan. The Investigation Officer (PW-10) in his evidence, has not at all spoken of the contents of the statement of the complainant-Jai Bhagwan (PW-2), recorded by him under Section 161 of the Cr.P.C. Further, PW-2 in the light of the answers elicited from him in the cross-examination by Public Prosecutor, with regard to the contents of 161 statement which relevant portions are marked in his cross-examination and the said statements were denied by him, the prosecution was required to prove the said statements of the PW-2 through the Investigating Officer to show the fact that PW-2 Jai Bhagwan in his evidence has given contrary statements to the Investigation Officer at the time of investigation and, therefore, his evidence in examination-in-chief has no evidentiary value. The same could have been used by the prosecution after it had strictly complied with Section 145 of the Indian Evidence Act, 1872. Therefore, the I.O. should have spoken to the above statements of PW2 in his evidence to prove that he has contradicted in his earlier Section 161 statements in his evidence and, therefore, his evidence cannot be discarded to prove the prosecution case. It becomes amply clear from the perusal of the evidence of PW-10, I.O. in the case that the same has not been done by the prosecution. Thus, the statements of PW-2 marked from Section 161 of Cr.P.C. in his cross- examination cannot be said to be proved in the case to place reliance upon his evidence to record the findings on the charge. The position of law in this regard is well settled by this Court in the case of V.K. Mishra v. State of Uttarakhand[7]. The relevant paras are extracted hereinbelow: "16. Section 162 CrPC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) CrPC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) CrPC. The statements under Section 161 CrPC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re-examination of the witness if necessary. 17. The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162 CrPC "if duly proved" clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross- examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction. 18. Section 145 of the Evidence Act reads as under: '145. Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.' 19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act that is, by drawing attention to the parts intended for contradiction." (emphasis laid by this Court) Thus, the contradiction of evidence of the complainant-Jai Bhagwan (PW-2) does not prove the factum of demand of bribe by the appellant from the complainant-Jai Bhagwan as the statement recorded under Section 161 of Cr.P.C. put to him in his cross-examination was not proved by B.S. Yadav (PW-10) by speaking to those statements in his evidence and therefore, the evidence of PW-2 is not contradicted and proved his Section 161 statement in the case. Further, the appellant in his examination under Section 313 of Code of Criminal Procedure, 1973 has, inter alia, stated thus: "Q 4: it is in evidence against you that on 28.07.2004 you demanded Rs. 5000/- as bribe from complainant Jai Bhagwan and you accepted Rs. 4000/- as bribe from him and asked the complainant to bring Rs. 1000/- on 30.07.2004 near Dichau Kalan bus stand, Najafgarh. What you have to say? Ans. It is incorrect. XXX XXX XXX Q 14: It is evidence against you that at about 7:00 p.m. you came and you met with complainant and moved towards one water rairi and you demanded and accepted Rs. 1000/- as bribe from the complainant in the presence of panch witness with your right hand and kept the same in left pocket of your shirt. What you have to say? Ans. It is incorrect. Q 15: It is in further evidence against you that in the meantime panch witness gave pre-determined signal and thereafter the members of raiding party came and you were apprehended and panch witness told the raiding officer that you had demanded and accepted the bribe of Rs. 1000/- from the complainant (PW-2) with your right hand and kept the same in your left pocket of your shirt. What you have to say? Ans. It is incorrect." After a careful reading of the evidence of the complainant-Jai Bhagwan (PW- 2), statements made by the appellant in his examination under Section 313 of Cr.P.C. as well as the evidence of Anoop Kumar Verma (PW-6) and inspector-Sunder Dev (PW-12), it is clear that there was no demand of bribe money by the appellant from the complainant-Jai Bhagwan. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus: "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI." (emphasis supplied) In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under: "21. In State of Kerala and another vs. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 22. In a recent enunciation by this Court to discern the imperative pre- requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder." (emphasis supplied) Further, in the case of Satvir Singh v. State of Delhi[8], this Court has held thus: "34. This Court, in K.S. Panduranga case has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the abovesaid decision is extracted hereunder: (SCC pp. 740-41, para 39) "39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted." (emphasis supplied) 35. The learned Senior Counsel for the appellant has also placed reliance upon the case of Banarsi Dass referred to supra wherein it was held that: (SCC pp. 456-57, para 24) "24. In M.K. Harshan v. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under: (SCC pp. 723-24, para 8) '8. ... It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.'..." (emphasis supplied) In view of the aforesaid reasons, the approach of both the trial court and the High Court in the case is erroneous as both the courts have relied upon the evidence of the prosecution on the aspect of demand of illegal gratification from the complainant-Jai Bhagwan (PW-2) by the appellant though there is no substantive evidence in this regard and the appellant was erroneously convicted for the charges framed against him. The prosecution has failed to prove the factum of demand of bribe money made by the appellant from the complainant-Jai Bhagwan (PW-2), which is the sine qua non for convicting him for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. Thus, the impugned judgment and order of the High Court is not only erroneous but also suffers from error in law and therefore, liable to be set aside. For the reasons stated supra, the impugned judgment and order of the High Court as well as the trial court are set aside. The appeal is allowed. The Jail Superintendent is directed to release the appellant forthwith from the Jail if he is not required in connection with any other case. The Registry is directed to communicate the above portion of the order to the concerned Jail Superintendent to comply with the directions issued to him. ..............................CJI. [T.S. THAKUR] ................................J. [V. 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