MUKUT BIHARI & Anr. v. STATE OF RAJASTHAN

appellants-accused were the employees. A trap was arranged, whereby the complainant met appellant No. 1 and had conversation with him, and thereafter the complainant handed over the tainted money to appellant No. 2 at the instance of appellant No. 1. The trap party arrested both the appellants immediately. Trial court D convicted the appellants and sentenced them to 2 years RI. High Court confirmed the conviction and sentence. Hence the present appeal. In appeal to this Court appellants contended that for E constituting an offence under Prevention of Corruption Act, the prosecution has to prove the demand of illegal gratification; that recovery of tainted money or mere acceptance thereof is not sufficient to fasten the criminal liability; that the trap should be supported by an independent eye-witness; that interested witness should be corroborated; that the conversation between the complainant and the accused should have been heard by the Panch witness; and that if two views are possible, the one in favour of the accused should prevail. Dismissing the appeal, the Court HELD: 1.1 Demand of illegal gratification is sine qua non for constituting an offence under the Prevention of F G H 712 SUPREME COURT REPORTS [2012] 6 S.C.R. A Corruption Act, 1988. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere B receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised u/s. 20 of the c Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act. While invoking the provisions of Section 20 of the Act, the D court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the E amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case, the F court may look for independent corroboration before convicting the accused person. [Para 8] [719-AlF] Ram Prakash Arora v. The State of Punjab AIR 1973 SC 498; SurajMa/ v. The State (Delhi Admn.) AIR 1979 SC 1408; G T. Subramanianv. The State of T.N. AIR 2006 SC 836:2006 (1) SCR 180; A. Subairv. State of Kerela (2009) 6 SCC 587; State of Maharashtra v. Onyaneshwar Laxman Rao wankhede (2009) 15 sec 200: 2009 (11) SCR 513; C.M. Girish Babu v. CBI, Cochin, High Court of Kera/a AIR 2009 H MUKUT BIHARI & ANR. v. STATE OF RAJASTHAN 713 SC 2022: 2009 (2) SCR 1021; State of Kera/a and Anr. v. A GP. Rao (2011) 6 SCC 450: 2011 (6) SCR 864 - Referred to. 8

1.2 In the instant case, there are concurrent finding of facts that appellant No. 1 asked for bribe as stated by PW.1. It is duly supported by S.H.O. (PW.10), the leader of the trap party as he deposed that persons sitting there asked for money. The acceptance had duly been corroborated by PW.3, who deposed that the money was lying on the table. Constable (PW.7) stated that he saw C appellant No. 2 counting the money. The trap stood proved by the depositions of PW.1, PW.3, PW.6, PW.7 and PW.10. All the witnesses narrated fully how the trap was conducted from the very beginning till the seizure of the tainted money including the making of seizure memos etc. PW.5 admitted the practice of donations by patients. D PW.3 and PW.6 were independent witnesses. [Para 6] [718-C-E]

1.3 The plea that complainant's version required corroboration in all circumstances, in abstract, would encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration in case of the prosecution. Law cannot countenance such situation. Thus, it is not necessary that the evidence of a reliable witn.ess is necessary to be corroborated by another witness, as such evidence stands corroborated from the other material on record. Therefore, it is always desirable to have a shadow witness in the trap party but mere absence of such a witness would not vitiate the whole trap proceedings. [Paras 10 and 14] [720-F-H; 722-A-B]