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Judgment
Present appeal is arising out of the judgment dated 30.09.2015 passed by the learned Special Sessions Judge, Dhar in S.C. No.03/2014
convicting the appellant under Section 7 of the Prevention of Corruption Act and sentenced to undergo 2 years RI and fine of Rs.1000/- has been
inflicted upon him and in default of payment of fine, to further undergo one month RI. He has also been convicted under Section 13/2 of the
Prevention of Corruption Act and sentenced to undergo 2 years RI with a fine of Rs.1000/- along with default clause to undergo one month''s
further RI in case, the fine amount is not deposited.
Facts of the case reveal that a complaint was submitted against one Firoj for assaulting someone on 04.06.2013 and at the relevant point of
time, the appellant was posted as Station House Officer (In-charge). The appellant, as a complaint was received, called Firoj (PW-1) to police
chowki-Dehri and allegedly threatened Firoj for sending him to jail and in case, he wanted a clean-chit from police, he was required to pay a sum
of Rs.10,000/- as bribe.
A sum of Rs.3000/- was allegedly paid on 04.06.2013 by Firoj to the appellant and he was required to pay the balance of Rs.7000/- to the
appellant. The complainant-Firoj on 05.06.2013 came down to Indore and met Superintendent of Police (Lokayukta). He submitted an
application Ex.P-1 and Superintendent of Police (Lokayukta) has marked the application to Inspector, Anil Singh Chouhan, PW-8 for necessary
action. Lokayukta Inspector, Anil Singh Chouhan, after hearing the entire complaint from Firoj handed over the voice recorder through a
Panchnama, Ex.P-2 to Firoj. Along with the complainant-Firoj, one shadow witness -Kamles, PW-3 was deputed and on 05.06.2013, Firoj PW-
1 and shadow witness- PW-3 Kamlesh went to police station- Dehri. The shadow witness was standing at some distance from the office and the
complainant went near the present appellant and kept the voice recorder on. Conversation was recorded and its indication was given to Lokayukta
Inspector, Anil Singh Chouhan, PW-8.
The complainant was told to come after 2-3 days by the present appellant. Inspector, Anil Singh Chouhan called Firoj along with money on
10.06.2013 and after the Lokayukta establishment was satisfied with the demand raised by the present appellant, a Dehati Nalishi was lodged,
annexure P- 28 and proceedings were initiated under the Prevention of Corruption Act, 1988. Prescribed procedure was followed and the trap
party on 10.06.2013 reached the office of the appellant at Dehri at 11 a.m.
Complainant-Firoj entered the chamber of the present appellant and handed over the money. The trap party thereafter entered the police station
and the hands of the appellant were washed with fresh water, which turned pink and proper Panchnama was prepared in respect of currency notes
as well as the water which turned pink.
Based upon the trap conducted by the police establishment, statements of the witnesses were recorded under Section 161 of Cr.P.C. and after
conducting necessary formalities including examination from the state forensic lab, charge-sheet was filed and on 03.01.2014, sanction for
prosecution was granted in the matter and charges were framed on 03.03.2014.
The complainant -Firoj was examined before the trial court. Firoj has categorically stated before the trial court that he has not handed over the
money to the present appellant. Firoj has again gone to the extent in stating before the trial court that while entering the police station, the present
appellant was coming out of the police station and shook hand with the present applicant and thereafter, entered the police station. Firoj has also
stated that he gave money to a person, who ran away after taking the money and the appellant present in the court is not the person, who has
received the money, meaning thereby, the most important witness in the present case has turned hostile.
The trial court has examined Anil Singh Chouhan, PW- 8. He has stated that Firoj PW-1 has informed him that the appellant was asking for
bribe and voice recorder was handed over to him. PW-8 has certainly supported the prosecution case. The factum of trap has also been
established. The trial court has examined as many as nine witnesses. PW-1 Firoj, PW-2, Satish Kumar Joshi, PW-3 Kamlesh parihar, PW-4
Dipendra Singh, PW-5 Amar Singh Bhide, PW-6 Suresh Gangrane, PW-7 Sanwar, PW-8 Anil Singh and PW-9 Asha Sejakar.
In defence, three defence witnesses were examined, DW-1 Praveen Mandloi, DW-2 Javahar Singh Nayak and DW-3 Surendra Singh.
The most important aspect of the case is that the trial court based upon the statements of the witnesses has held the charges proved. However,
facts of the case reveal that the complainant - Firoj PW-1, prosecution witnesses; PW-7 Sanwar and PW-4 Dipendra Singh did not support the
prosecution story and were declared hostile. Neither the original voice recorder, nor the CD and nor the certificate as required under Section 65B
of the Evidence Act was filed before the trial court and the trial court in spite of the aforesaid fact has relied upon the transcript Ex.P-8 while
convicting the present appellant.
It has been vehementally argued before this Court that the trial court could not have convicted the appellant based upon the transcript specially
in light of the judgment delivered in the case of Sanjaysingh Ramrao Chavan Vs. dattatray Gulabrao Phalke and Others, reported in 2015(3) SCC,
123.
In the aforesaid case, Hon''ble Supreme Court in paragraph No.14, 16 and 17 has held as under:-
In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the
police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the
appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is
nonconsideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside
the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose
of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal
jurisprudence. Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless
the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or
glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the
judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional
jurisdiction.
It is to be noted that in the first complaint filed by the second respondent - the de facto complainant, there is no allegation for any
demand for bribe by the appellant. The allegation of demand is specifically against accused no.2 only. That allegation against the
appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to
be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure-B report
has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis.
Learned Counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch
witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice
recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no
authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in
Anvar P.V. v. P.K. Basheer.
The Magistrate, having seen the records and having heard the parties, has come to the conclusion that no offence is made out
against the appellant under the provisions of the PC Act so as to prosecute him. Even according to the High Court, ""the crux of the
matter is the conversation between the complainant and the accused no.1 of 22.11.2010"". That conversation is inaudible and the
same is not to be taken in evidence. Therefore, once the ''crux'' goes, the superstructure also falls, lacking in legs. Hence, prosecution
becomes a futile exercise as the materials available do not show that an offence is made out as against the appellant. This part,
unfortunately, the High Court missed.
""Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course.
(Pepsi Foods Limited and another v. Special Judicial Magistrate and others[5], Paragraph-28). The process of the criminal court
shall not be permitted to be used as a weapon of harassment.
Once it is found that there is no material on record to connect an accused with the crime, there is no meaning in prosecuting him. It
would be a sheer waste of public time and money to permit such proceedings to continue against such a person.
In the aforesaid case also, voice recorder was also not subjected to analysis and Hon''ble the Supreme Court has dealt with the significance
and authenticity of the electronic evidence.
Another case, delivered in the case of C.M. Girish Babu Vs. CBI, Cochin High Court of Kerala, reported in 2009 (3) SCC 779 in
paragraph No.18 has held as under:-
In Suraj Mal Vs. State (Delhi Admn.), this Court took the view that (at SCC p.727,para 2) mere recovery of tainted money
divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the
case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any
evidence to prove payment of bribe or to show the accused voluntarily accepted the money knowing it to be bribe.
Hon''ble the Supreme Court has held that mere recovery of tainted money from an accused when substantive evidence cannot be relied upon
for convicting a person under Section 7 of Prevention of Corruption Act, cannot be a basis of convicting a person. In the present case, the money
has not been recovered from the appellant and it was recovered from the drawer, there is no evidence to establish that the appellant has received
the money from the complainant.
This Court in the case of Harpal Singh Bundela Vs. State of Madhya Pradesh, in paragraph Nos.25, 26, 27 and 28 has held as
under:-
The Hon''ble Apex Court in the case of Anvar P.V. vs P.K.Basheer and others, (2014) 10 SCC 473 has held as under:
Electronic record produced for the inspection of the court is documentary evidence under Section 3 of The Indian Evidence Act,
1872 (hereinafter referred to as ''Evidence Act''). The Evidence Act underwent a major amendment by Act 21 of 2000 [The
Information Technology Act, 2000 (hereinafter referred to as ''IT Act'')]. Corresponding amendments were also introduced in The
Indian Penal Code (45 of 1860), The Bankers Books Evidence Act, 1891, etc.
Section 22A of the Evidence Act reads as follows:
22A. When oral admission as to contents of electronic records are relevant.-
Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is
in question.
Section 45A of the Evidence Act reads as follows:
45A. Opinion of Examiner of Electronic Evidence.-
When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any
computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in section
79A of the Information Technology Act, 2000(21 of 2000)., is a relevant fact.
Explanation.--For the purposes of this section, an Examiner of Electronic Evidence shall be an expert.
Section 59 under Part II of the Evidence Act dealing with proof, reads as follows:
Proof of facts by oral evidence.- All facts, except the contents of documents or electronic records, may be proved by oral
evidence.
Section 65A reads as follows:
65A. Special provisions as to evidence relating to electronic record: The contents of electronic records may be proved in
accordance with the provisions of section 65B.
Section 65B reads as follows:
65B. Admissibility of electronic records:(1) Notwithstanding anything contained in this Act, any information contained in an
electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer
(hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are
satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or
production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be
admissible.
(2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely: -
(a) the computer output containing the information was produced by the computer during the period over which the computer was
used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person
having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so
contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in
which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic
record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the
ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on
over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether -
(a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period;
or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or
more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this
section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the
following things, that is to say, -
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of
showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person
occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities
(whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be
sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so
supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed
for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly
supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without
human intervention) by means of any appropriate equipment.
Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to
its being derived therefrom by calculation, comparison or any other process.
These are the provisions under the Evidence Act relevant to the issue under discussion.
In the Statement of Objects and Reasons to the IT Act, it is stated thus:
New communication systems and digital technology have made drastic changes in the way we live. A revolution is occurring in the
way people transact business.
In fact, there is a revolution in the way the evidence is produced before the court. Properly guided, it makes the systems function
faster and more effective. The guidance relevant to the issue before us is reflected in the statutory provisions extracted above.
Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be
proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the
electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It
may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any
information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media
produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied,
without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as
computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions
under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the
same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the
person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed
into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for
some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the
ordinary course of the said activity.
Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedingspertaining to an electronic
record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and (e) The
certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief.
Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video
Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced
in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic
record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc.
without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the
genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under
Section 65B of the Evidence Act are not complied with, as the law now stands in India.
The Apex Court in the case of Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke and others, (2015) 3 SCC 123 has
considered in detail the legal provisions and the provisions of Section 65(b) of Evidence Act when electronic evidence is admissible in
evidence and has held as under:
It is to be noted that in the first complaint filed by the second respondent - the de facto complainant, there is no allegation for any
demand for bribe by the appellant. The allegation of demand is specifically against accused no.2 only. That allegation against the
appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to
be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure-B report
has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis.
Learned Counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch
witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice
recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no
authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in
Anvar P.V. v. P.K. Basheer and others, (2014) 10 SCC 473.
The principal of law, as laid down by the Apex Court, is that if electronic record is duly produced in terms of Section 65(b) of
Evidence Act then it is admissible in evidence and for that a certificate is necessary of a person as required in specifications as
mentioned in para 15 of the judgment of the Apex Court.
In the present case, no such certificate was produced. Neither the voice recorder was produced before the Court nor it is was
examined by the Court. Hence, in my opinion, the trial Court has committed an error of law in relying the transcript and electronic
evidence. This evidence is inadmissible in law.
In light of the aforesaid judgment, conviction based upon the transcript and electronic evidence is bad in law.
Learned counsel for the respondent/Lokayukta has placed reliance upon a judgment delivered by the Hon''ble Supreme Court in the case of
Hazari Lal Vs. State (Delhi Admn.) reported in 1980 SC 873. In paragraph No.8, aforesaid order has held as under:-
After excluding irrelevant material we are left with the evidence of P.W.8 and that of P.W.4 whose evidence corroborates that of
P.W.8 in several material particulars. We, however, wish to say that the evidence of P.W.8 is entirely trustworthy and there is no
need to seek any corroboration. We are not prepared to accept the submission of Shri Frank Anthony that the fact that he is the very
Police Officer who laid the trap should be sufficient for us to insist upon corroboration. We do wish to say that there is no rule of
prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers
should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and
circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but,
equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer. It is all a
matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential
guidance. We are forced to say this because of late we have come across several judgments of Courts of Session and sometimes
even of High Courts where reference is made to decisions of this Court on matters of appreciation of evidence and decisions of pure
question of fact. While on this subject of appreciation of evidence we may also refer to an argument of Shri Frank Anthony based on
the observations of a learned single judge in Kharaiti Lal v. The State (1965) 1 Delhi LT, 362 that persons holding clerical posts and
the like should not be called as panch witnesses, as such witnesses could not really be called independent witnesses as they would
always be under fear of disciplinary action if they did not support the prosecution case. We do not think we can accept the
submission of Shri Frank Anthony. The respectability and the veracity of a witness is not necessarily dependent upon his status in life
and we are not prepared to say that Clerks are less truthful and more amenable than their superior officers.
In light of the aforesaid, he has argued that the evidence of the police officer, who laid a trap is reliable and no corroboration is necessary.
This Court has carefully gone through the aforesaid judgment and the present case is having distinguishable features and as the complainant has
turned hostile and there is no certificate in respect of electronic evidence in terms of Section 65B of the Evidence Act.
Learned counsel for the Lokayukta has also placed reliance upon the judgment delivered in the case of T. Shankar Prasad Vs. State of Andhra
Pradesh, reported in AIR 2004 SC, 1242. Heavy reliance has been placed upon paragraph Nos.13, 14 and 24.
Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another,
the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances.
Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later.
Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can
draw an inference and that would remain until such inference is either disproved or dispelled.
For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or
dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to
observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory
compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra (1998 (7) SCC 337) ""A presumption
can be drawn only from facts and not from other presumptions by a process of probable and logical reasoning.
The fact that PW-1 did not stick to his statement made during investigation does not totally obliterate his evidence. Even in
criminal prosecution when a witness is cross-examined and contradicted with the leave of Court by the party calling him, his evidence
cannot as a matter of law be treated as washed off 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 said witness, accept in the light of other evidence on record that part of his testimony
which he found to be creditworthy and act upon it. As noted above, PW-1 did not totally resile from his earlier statement. There was
only a halfhearted attempt to partially shield A-2. PW-1 has categorically stated that he had paid the money to A-2 as directed by A-
As noted above, the plea of A-2 that he had accepted the money as advance tax has been rightly discarded being contrary to
official records. Evidence of PW-2 with regard to proceedings on 28.4.1992 has been clearly established. Evidence of PW-4 the
mediator is corroborated by the evidence of PWs 1, 3, 7 and 8. His report was marked as Ext P.13. The same along with the other
evidence clearly establish the accusations against both the accused. When money was recovered from the pocket of one of the
accused persons a presumption under Section 7 of the Act is obligatory. It is a presumption of law and cast an obligation on Court to
operate it in every case brought in Section 7. The presumption is a rebuttable presumption and it is by proof and not by explanation
which may seem to be plausible. The evidence of PWs 4, 5, 7 and 8 read with the evidence of PW-1 established recovery of money
from A-2. A belated and stale explanation was offered by A-2 that the money was paid towards tax. This plea was rightly discarded
as there was no tax due and on the contrary the complainant was entitled to some refund. An overall consideration of the materials
sufficiently substantiate, in the case on hand the prevalence of a system and methodology cleverly adopted by the accused that the
demand will be specified when both the accused were present and thereafter as and when the A-1 puts his signature the party has to
meet A-2, at his seat for fixing the seal and making entry in the Register to make the process complete only after collecting the
amount already specified by A-1 in A-2''s presence. The involvement of both of them in a well planned and cleverly managed device
to systematically collect money stood sufficiently established on the evidence let in by prosecution. Further A-2 did not offer his
explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by
this Court in A. Abdul Kaffar v. State of Kerala (2003 (8) Supreme 804). It was noted that such a stand was not taken at the first
available opportunity, and the defence was not genuine. In State of U.P. v. Dr. G.K.Ghosh (AIR 1984 SC 1453) it was observed
that in case of an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, the Court may
feel safe in accepting the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the
trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is
consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty in upholding the conviction.
In the aforesaid case also, the amount was recovered from the possession of the accused whereas in the present case, there is no witness who
has stated that the amount was recovered from the present accused and the complainant has turned hostile and therefore, the judgment relied upon
is of no help to the prosecution.
A reliance has also been placed upon the judgment delivered by the Division Bench of this Cour in the case of Rajesh Khatik Vs. State of
M.P., in Cr.A. No.1880/2014 decided on 19.01.2017 and also upon the judgment delivered in the case of Keshram Chaudhary Vs. Lokayukta.
In the aforesaid cases also, the complainant has turned hostile and in spite of the aforesaid fact, conviction was upheld.
In both the cases, the issue of Section 65B was not at all involved. The present case is the case where certificate under Section 65B of the
Evidence Act in respect of electronic evidence was not produced and based upon the transcript, Ex.P-8, which is CD, the appellant has been
convicted and, therefore, in light of the aforesaid foregoing discussion, the judgment of conviction deserves to be set aside and is, accordingly, set
aside. The sureties stand discharged. The criminal appeal is allowed. Fine amount, if any, be refunded back to the appellant within 6 months.