Smt. Sudha Choubey vs State of M.P. (Now C.G.)

Manindra Mohan Shrivastava, J.—This order shall govern disposal of two criminal appeals i.e. Criminal Appeal Nos. 624 & 681 of 1998. The aforesaid two appeals are directed against judgment of conviction and order of sentence dated passed by the Special Judge, Durg, in Special Case No. 4/1994, whereby and whereunder the appellant-Sudha Choubey has been held guilty of commission of offence u/s 7.13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1947 (In short "the Act") and sentenced to undergo R.I. for six months and fine of Rs. l,500/- and in default of payment of fine, additional R.I. of two months for each of the offences and the appellant-K.L. Dewangan has been convicted u/s 7 read with Section 12 and 13(1)(d)(1) read with Section 13(2) and Section 12 of the Act and sentenced to undergo R.I. for six months and fine of Rs. 1,500/- and in default of payment of fine, additional R.I. of two months for each of the offences.

The prosecution case, as unfolded from the records of the case and the judgment of the trial Court, is that the complainant-Onkar Singh-P.W. 11 used to supply food items in the Department of Woman and Child Welfare. As against outstanding bill of Rs. 39,000/-, payments were received in the office of District Woman & Child Development Officer. In order to receive the payment against the bills towards supply of food items, the complainant-Onkar Singh contacted the appellant-K.L. Dewangan on 22-06-1992. K.L. Dewangan told him that he will have to pay bribe to the extent of 10% of the total outstanding bill to the appellant-Sudha Choubey, District Woman & Child Development Officer and then only payments would be made. The complainant thereafter met the appellant-Sudha Choubey in her official residence on 24-06-1992 in connection with payment of outstanding bills. At that stage, the appellant-Sudha Choubey demanded 10% of the outstanding payment as bribe, but on request of the complainant, bribe was settled at 7% i.e. Rs. 2,500/-. According to the case of the prosecution, the appellant-Sudha Choubey directed the complainant to give the said amount to the appellant-K.L. Dewangan on 25-06-1992 and only after receipt of the said amount, payment would be released.

As the complainant was not willing to give bribe, a complaint in writing in Ex. P-4 was submitted before the Superintendent of Police, Special Police Establishment, Lokayukta, Raipur on 25-06-1992. Upon receipt of complaint, two panch witnesses were summoned and in their presence, complaint was verified, 25 currency notes, each of Rs. 100/-, were deposited by the complainant for being used in trap proceedings and their numbers were noted. Demonstration of chemical reaction of Sodium Carbonate with Phenolphthalein Powder was given to the complainant in the presence of panch witnesses. Currency notes were tainted with phenolphthalein powder and instructions were given to the complainant as well as to the panch witnesses. Number of officers were included in the trap team and names were also noted. A panchnama of trap proceedings was prepared vide Ex. P-5.

Further case of the prosecution is that thereafter the trap team along with the complainant and panch witnesses proceeded to the office of District Woman & Child Development Officer, Durg, where complainant asked the appellant-K.L. Dewangan to make payment of his pending bills. Demand of bribe was made by K.L. Dewangan, whereupon bribe of Rs. 2,500/- was given by the complainant and received by K.L. Dewangan and it was then passed on to the appellant-Sudha Choubey, who accepted it and kept it in her bag. On a signal given by the complainant, trap team arrived at the spot and the appellant Sudha Choubey was caught red handed. Her hands were washed in the solution of Sodium Carbonate, which turned pink. Bribe money of Rs. 2,500/- was recovered from her bag along with the papers, which were also washed in the solution of Sodium Carbonate, which also turned pink. Bill amount of Rs. 39,000/- paid to the complainant were also seized. Numbers of tainted currency notes were found tallying with the numbers of currency notes noted in the pre-trap panchnama. Hand wash of the appellant/complainant/panch witnesses and wash of the currency notes and other documents were collected and sealed in bottles. The bottles containing hand wash etc. were sent to Forensic Science Laboratory (In short "the FSL") vide Ex. P-11 and the FSL report in Ex. P-72 was received, which indicated positive result showing traces of phenolphthalein in the hand wash of the appellant and also in the wash of the currency notes and the documents. Usual investigation was conducted, in which, other relevant documents relating to supply of food material bills etc. were seized. Map of the spot was also prepared in Ex. P-67. Sanction for prosecution was granted by the State Government vide order dated 6-11-1993 in Ex. P-69. After completion of usual investigation, charge sheet was filed in the Court of 1st Additional Sessions Judge, Durg, on the basis of which, charges were framed against each of the accused-appellant by Special Judge, Durg on 30-08-1994. Appellant-Sudha Choubey was charged of commission of offence u/s 7 and 13(1)(d) read with Section 13(2) of the Act and the appellant-K.L. Dewangan was charged of commission of offence u/s 7 read with Section 12 and Section 13(1)(d) read with Section 13(2) and 12 of the Act. As the appellants-Sudha Choubey & K.L. Dewangan abjured guilt, they are put to trial. In order to prove its case, the prosecution examined as many as twelve witnesses namely Narayan Rao Gayakawad, P.W. 1, Ku. Vatsala Soni, P.W. 2, Smt. Deepti Benerjee, P.W. 3, Chandrasekhar Shriwas, P.W. 4, Dauram Verma, P.W. 5, Mrinal Khare, P.W. 6, Ishwari lal Gumasta, P.W. 7, Ramnath Choudhary, P.W. 8, Dhaniram Yadav, P.W. 9, Umedha Toppo, P.W. 10, Onkar Singh, P.W. 11 and M.C. Sharma, P.W. 12. The appellants were examined u/s 313 of the Cr.P.C. in respect of incriminating evidence and circumstances appearing against them, which were denied. Appellant-Sudha Choubey stated that the complainant insisted on supply of food material on the rates quoted by him, which was not accepted and had proposed procurement through co-operative societies, therefore the complainant out of vengeance, falsely implicated. With regard to receipt and recovery of Rs. 2,500/- from her possession, it was stated that the said amount was given to her by the other appellant-K.L. Dewangan for repair of the vehicle. Appellant-K.L. Dewangan sought to raise defence to the effect that he had neither accepted nor passed on any amount to the appellant-Sudha Choubey nor had given any amount for repair of jeep. Relying upon the evidence of the prosecution and disbelieving the defence, the learned trial Court held both the appellants guilty of commission of offence alleged and convicted them as described above.

Assailing the correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant-Sudha Choubey, contended that the conviction of the appellant-Sudha Choubey is unsustainable in law as the prosecution has failed to prove demand and acceptance both, therefore recovery, if any, is of no consequence. It has been contended that the evidence of Onkar Singh, P.W. 11, in the absence of independent corroboration, cannot be acted upon, particularly when, story as stated in the complaint and as deposed before the Court is contradictory on all material particulars with regard to manner and receipt of bribe. According to him, while in the complaint, it has been stated that the bill was to be paid after giving bribe, but in the evidence he has stated that bill was first paid then bribe was given, which renders the story of demand doubtful. Further contention is that there are serious contradiction and material omission in the testimony of the complainant when confronted with case diary statements, D-1. Therefore, the complainant''s story is concocted one and liable to be disbelieved in the absence of independent corroboration of demand. Further submission is that the officer conducting raid has not acted fairly and as both panch witnesses Smt. Deepti Banerjee, P.W. 3 & Umedha Toppo, P.W. 10 have deposed in their evidence that they were not instructed to go along with the complainant, which is against the very purpose of keeping of Panch witnesses in trap proceedings. Learned counsel also urged that none of the panch witnesses have deposed that they either witnessed the transaction of give and take of bribe money or overheard any conversation between the complainant and the appellant to corroborate the story of demand and to prove acceptance by independent Panch witnesses. According to him, specific evidence of P.W. 12 reveals that the panch witnesses refused to go along with the complainant. Therefore, the entire case of the prosecution becomes doubtful.

It has also been urged that the prosecution has failed to prove beyond doubt, acceptance of bribe by appellant-Sudha Choubey. According to him, in the absence of evidence of panch witnesses regarding appellant having accepted the bribe money, it would be unsafe to rely upon the testimony of complainant-Onkar Singh, P.W. 11. Further submission is that the receipt vide Ex. P-14 by the FSL, contains number of a different case, therefore, it is highly doubtful whether the sealed bottles sent for analysis were at all related to the case of the appellant and for that reason, it becomes highly doubtful whether the FSL reports relates to hand wash collected in the case of the appellant. Learned counsel for the appellant further submitted that the FSL report is not given by an expert as stated u/s 293 Cr.P.C., but by a Assistant Chemical Examiner and Technical Officer of Forensic Science Laboratory, Sagar. Therefore, in the absence of proof of those documents in accordance with law by the author of the document, the said report is inadmissible in evidence. Moreover, serious contradictions and omissions in the testimony of the complainant-Onkar Singh, P.W. 11 when controverted with case diary statement, Ex. D-1, also renders the story of acceptance doubtful.

It is then contended that where demand and acceptance are doubtful and the prosecution has failed to prove the same beyond reasonable doubt, mere recovery of tainted money divorced from the circumstances of the case, would not bring home the guilt of the appellant, particularly when appellant-Sudha Choubey has come out with plausible defence, also indicated from Panch witness Smt. Deepti Banerjee, P.W. 3 that Rs. 2,500/- said to be recovered from her possession were given to her by the appellant-K.L. Dewangan for repair of the official vehicle. This defence being reasonable, plausible and possible explains the possession of Rs. 2,500/-. Therefore, in these circumstances, the prosecution has failed to prove beyond reasonable doubt, the guilt of the appellant-Sudha Choubey and therefore, she is entitled to be acquitted by giving her benefit of doubt. In support of his contention, learned counsel for the appellant has placed reliance upon the decisions in the case of Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, , C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala, , Banarsi Dass Vs. State of Haryana, T. Subramanian Vs. State of Tamil Nadu, Punjabrao Vs. State of Maharashtra, , State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede, and Asha Verma and Others Vs. State of M.P. (Now State of Chhattisgarh),

Learned counsel appearing for the appellant-Kanhaiya Lai Dewangan (Criminal Appeal No. 681/1998) assailed legality and validity of the impugned judgment of conviction and order of sentence convicting Kanhaiya Lal Dewangan on the submission that Kanhaiya Lal has neither raised any demand of bribe nor accepted. In his submission, Kanhaiya lal had no authority or power to sanction bill of the complainant-Onkar Singh and the power only rested with the other accused-Sudha Choubey. He further submits that the entire evidence against him only proves that Kanhaiya Lal communicated to the complainant about the wishes of the co-accused-Sudha Choubey that she expects bribe for sanctioning and releasing outstanding bills of the complainant. He further submits that even according to the complainant, Onkar Singh, P.W. 11, the appellant was not accepting the amount, which was being offered time and again and finally the complainant thrusted the money in his hands. This according to him, cannot be treated to be acceptance of bribe, when there is no demand. Moreover, even according to the case of the appellant, the bribe money was recovered from other accused-Sudha Choubey, against whom alone, allegation of demand has been made. Further submission is that Panch Witnesses Smt. Deepti Banerjee, P.W. 3 & Umedha Toppo, P.W. 10 have not stated anything with regard to acceptance of bribe by the appellant nor have testified that there was any conversation between the complainant and the appellant-Kanhaiya Lal to show that the appellant-Kanhaiya Lal had accepted the bribe. Even according to Umedha Toppo, P.W. 10, the complainant informed him that demand was made by the co-accused-Sudha Choubey. It is finally submitted that even if it is assumed that the appellant-Kanhaiya Lal passed on any message of demand, that does not constitute demand by the appellant-Kanhaiya Lai with motive of sanctioning bills of the complainant.

Replying to the arguments of learned counsel for the appellant in both the appeals, learned State counsel argued that allegations of demand has been convincingly proved by reliable testimony of complainant-Onkar Singh, P.W. 11. It has been contended that there is overwhelming evidence on record to show that the complainant had been supplying food material and number of bills were pending in the office of the appellant-Sudha Choubey, which were brought on record by the prosecution as Exhibits P-16 to P-62. The prosecution has also succeeded in proving that on the date of incident, Rs. 2,500/- was handed over by the appellant to Kanhaiya Lai and recovered from possession of the appellant-Sudha Choubey. In his submission, the appellant-Sudha Choubey has admitted having received the money of Rs. 2,500/- but has failed to offer any plausible and reasonable explanation for such possession. Therefore, presumption u/s 20 of the Act is at once drawn and acceptance of bribe is also proved. Learned State counsel argued that the explanation and defence of the appellant are wholly afterthought, contradictory and do not inspire confidence whatsoever, particularly because there has been serious contradiction between version of the two accused.

In C.K. Damodaran Nair Vs. Govt of India, , the Supreme Court had an occasion to consider the meaning and import of the word "obtained" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 [now Section 13(1)(cf) of the Act, 1988], and it was held: (SCC p. 483, para 12)

The position will, however, be different so far as an offence u/s 5(1)(c) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused ''obtained'' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption u/s 4(1) of the Act as it is available only in respect of offences under Sections 5(1)(a) and (b)--and not under Sections 5(1)(c), (d) or (e) of the Act. ''Obtain'' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence u/s 5(1)(d) of the Act unlike an offence u/s 161 IPC, which, as noticed above, can be, established by proof of either ''acceptance'' or ''obtainment''.

Relying upon the aforesaid decision, in another decision in the case of A. Subair Vs. State of Kerala, in para 15 at page 591, Supreme Court held:

15 The legal position is no more res integra that primary requisite of an offence u/s 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence u/s 13(1)(d) cannot be held to be established.

Therefore, in order to come to the conclusion as to whether a case of conviction is made out, it is required to be seen as to whether the prosecution has proved beyond reasonable doubt, the demand and acceptance of bribe by the accused.

The status of person offering bribe and the caution required while assessing his evidence implicating a Govt. servant was examined by the Supreme Court in its subsequent decision in the case of M.O. Shamsudhin Vs. State of Kerala, . wherein, it was held as under:

Now confining ourselves to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. Though bribe-givers are generally treated to be in the nature of accomplices but among them there are various types and gradations. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving the trap cannot succeed. When there is such a demand by the public servant from a person who is unwilling, and if to do public good approaches the authorities and lodges a complaint, then in order that the trap succeeds he has to give the money. There could be another type of bribe-giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses fall under the category of ''accomplices'' by reason of their being bribe-givers, in the first instance, the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances.

What therefore, emerges from the principles enunciated by the Supreme Court is that the complainant''s evidence has to be scrutinized carefully and the Court has to consider the degree of complicity and then look for corroboration, if necessary, as a rule of prudence. The extent and nature of corroboration that may be needed in a case, may vary, having regard to the facts and circumstances.

Evidence on record led by the prosecution, as also by the defence, therefore, is required to be scrutinized in order to find out as to whether the prosecution has been able to prove beyond reasonable doubt the demand, acceptance and recovery.

The complaint, Ex. P-4 has been proved by its author-Onkar Singh, who is complainant of the present case. He has testified in para 2 that in the year 1991-92, pursuant to acceptance of tender, he had supplied food material to District Mahila Evam Bal Vikas Office and bill of Rs. 39,000/- was outstanding. He further testifies in para 3 that when he met the appellant-Kanhaiya Lal, he was informed that allotment has not been made, thereafter, he again met after few days, then he was informed that allotment has come and thereafter, bills were prepared which was sent to treasury and after passing through treasury, it had come to the office. In para 4 of his testimony, the complainant has clearly deposed that when he approached in the office in connection with payment of outstanding bills, the appellant-Kanhaiya Lal told him that entire amount has been received from bank, but he will have to pay 10% of the total amount of the bill as bribe as told to him by co-accused-Sudha Choubey. Thereafter, the complainant-Onkar Singh met Sudha Choubey and expressed his inability to satisfy demand of 10% of the bill amount. On his repeated request, the accused-Sudha Coubey agreed @ 7% of total amount of the bill and he was asked by her to deposit Rs. 2,500/- with the appellant-Kanhaiya Lal, whereupon his bills will be cleared. This version of the complainant-Onkar Singh, P.W. 11 and what has been stated by him in complaint, Ex. P-4 is quite coherent and there is no vital discrepancy in material particulars regarding demand. In para 13 of his cross-examination also, he has testified that he met the appellant-Sudha Coubey in her house, after that the appellant Kanhaiya lal told him regarding demand of bribe. He has specifically denied suggestion that there was no talk with regard to payment, after taking 7% of the bill amount and told that whenever he comes for clearance of bill, bribe may be brought.

Learned counsel for the appellant has laid considerable emphasis on the contradiction and omission as referred to in para 16 & 17 of the evidence of complainant-Onkar Singh, P.W. 11 to submit that those contradictions and omissions are so material that it renders the testimony of the complainant highly doubtful and in such a situation, it would be unsafe to rely upon the case of the prosecution without independent corroboration of story of demand.

At the first place, the nature of contradictions and omissions, which have been referred to in para 16 & 17 of the evidence of Onkar Singh, P.W. 11 in respect of his diary statement, Ex. D-1, are not of such a nature as to render the evidence of the complainant liable to be disbelieved altogether. As far as demand is concerned, in the diary statement and what has been deposed in the Court and stated in the complaint, Ex. P-4 is coherent and does not suffer from material contradiction and omission. In diary statement, Ex. D-1 also, the complainant has stated that when he contacted in the office, the appellant-Kanhaiya lal told him that he will have to pay 10% as bribe money to the appellant-Sudha Choubey, but later on, she accepted at @ 7% of the bill amount and told him to give it to the appellant-Kanhaiya Lal, thereafter, his payment would be made. Therefore, as far as demand part is concerned, there is no contradiction at all and the evidence of complainant-Onkar Singh, P.W. 11 inspires confidence and worth acceptance.

Though the appellant-Sudha Coubey has come out with a case that the complainant-Onkar Singh, P.W. 11 had an axe to grind, because she was not accepting supply at the rate proposed by the complainant-Onkar Singh, P.W. 11 and started getting supply from other shop through the Collector, there is no material evidence placed on record by the appellant-Sudha Choubey in this regard. Neither any order of the Collector has been placed on record nor appellant-Sudha Choubey has examined any material witness to prove that supply was diverted from the complainant-Onkar Singh, P.W. 11 and was being received from some co-operative society. True it is that burden of the accused is not as heavy as that of the prosecution, yet it is very well settled legal position that the defence has to be examined on the touchstone of preponderance of probabilities and for being accepted and it must be plausible and reasonable. The appellant''s defence fails to satisfy this, in the absence of material of such a nature as mentioned hereinabove. Therefore, there is no material to even remotely suggest that the complainant had any motive for false implication because of any animosity against the appellant. Therefore, in the absence of any such reason for false implication, there is no reason to disbelieve the testimony of complainant-Onkar Singh, P.W. 11 with regard to demand so far as appellant-Sudha Choubey is concerned. Applying the law laid down by the Supreme Court in the case of M.O. Shamsuddin (supra), the present is not a case where the complainant in the past had been paying bribe and then suddenly started making complaints. Therefore, in the present circumstances, when at the first occasion of demand, the complainant belongs to the category of victim and looking to the nature of complicity, he at the most can be said to be an interested witness and not a particeps criminis. In the peculiar circumstances of the present case and truthful version of the complainant, demand can be said to be proved without requiring any corroboration. Had there been serious contradictions and omissions on material particular with regard to demand or any previous history of enmity between the parties or any other special reason, perhaps there would have been a need of corroboration.

Learned counsel for the appellant has also stressed upon the submission that two panch witnesses Smt. Deepti Banerjee, P.W. 3 & Umedha Toppo, P.W. 10 have not supported the case of the prosecution with regard to demand by the appellant-Sudha Choubey. True it is that two panch witnesses Smt. Deepti Banerjee, P.W. 3 & Umedha Toppo, P.W. 10 have not heard any conversation between the appellant-Sudha Choubey and the complainant, in view of the discussion as above, the absence of corroborating evidence, does not render the testimony of the complainant-Onkar Singh liable to be disbelieved.

With regard to acceptance part, the appellant-Sudha Choubey has very clearly accepted and admitted having received Rs. 2,500/-, but has come out with explanation. Therefore, it is quite clear that the appellant-Sudha Choubey handled the bribe money. Once demand is proved and the appellant-accused admits having received the currency notes, there is statutory presumption u/s 20 of the Act that the money was accepted as illegal gratification unless the same is rebutted by the accused by offering reasonable and plausible explanation on the touchstone of preponderance of probabilities.

The explanation offered by the appellant-Sudha Choubey is quite improbable in the present circumstances. It is the defence of the appellant-Sudha Coubey that the amount of Rs. 2,500/- was handed over to her by other appellant-Kanhaiya Lal Dewangan for repair of vehicle. At the first place, this is not a case of other appellant at all and he has specifically denied having passed on amount of Rs. 2,500/- to the appellant-Sudha Choubey. Secondly, the appellant-Sudha Choubey has not come out with any material evidence that there was need of repair of vehicle and for that purpose, certain advances were drawn from the funds available in the office. Even, concerned driver of the vehicle or any mechanic has not been examined to establish the story of mechanical defect in the vehicle. Therefore, explanation is clearly an afterthought. Though, learned counsel for the appellant-Sudha Choubey has contended that immediate explanation would show that the money was received for repair as stated by panch witness Smt. Deepti Banerjee, P.W. 3 in para 3 of her evidence, for reasons as discussed above, the explanation is not at all acceptable. The trial Court has thoroughly examined this aspect and rejected the explanation as improbable. On behalf of the appellant-Sudha Choubey, it has also been contended that there is serious contradiction with regard to sequence relating to demand and acceptance of bribe by submitting that as per complaint and diary statement, Ex. D-1, it was settled that first bribe amount would be given and then outstanding bills would be paid, but the evidence of the complainant Onkar Singh, P.W. 11 is contradictory, wherein it has been stated that the amount payable against the bill was paid first and thereafter bribe was taken. The complainant, Onkar Singh, P.W. 11 has deposed in para 8 & 9 of his evidence regarding giving of bribe and receipt of Rs. 39,000/- by the appellant-Kanhaiya Lal. In para 15 of his cross-examination, he has deposed that after signing of bills, his payment was immediately released and then handed over Rs. 2,500/- to the appellant-Kanhaiya Lal Dewangan. Though, there is some discrepancy as pointed out in para 16 & 17 of his deposition with regard to sequence in which payments is stated to have been made against the outstanding bills and giving of bribe, after going through the diary statement given by the complainant-Onkar Singh, P.W. 11, I am of the considered opinion that the discrepancy is not of such a grave nature as to completely disbelieve the story of acceptance of bribe. It has to be kept in mind that the appellant Sudha Choubey had accepted and admitted having received the amount of Rs. 2,500/-. Moreover, the evidence of independent Panch witnesses Smt. Deepti Banerjee, P.W. 3 & Umedha Toppo, P.W. 10 also proved without any doubt that the currency notes of Rs. 2,500/- was recovered from the possession of the appellant-Sudha Choubey. In fact, the appellant-Sudha Choubey has sought to give explanation as to how she received the amount and not that she has altogether denied receipt of the amount. Therefore, merely because, there is some discrepancy with regard to sequence in which bribe is given and payments against the outstanding bills were received, the story of acceptance of bribe, particularly in the background of admission of having received Rs. 2,500/-, cannot be doubted. The recovery of currency notes, apart from demand, has been convincingly proved by the prosecution by proof of seizure of currency notes from the appellant-Sudha Choubey, which has been proved by the Panch witnesses Smt. Deepti Banerjee, P.W. 3 & Umedha Toppo, P.W. 10, who have clearly deposed in their evidence that Rs. 2,500/- was recovered from the bag of the appellant-Sudha Choubey, which was seized vide Ex. P-6 signed by them. This part of the evidence of Smt. Deepti Banerjee, P.W. 3 has also not been controverted. Umedha Toppo, P.W. 10 has also deposed in para 5 of her evidence regarding recovery of bribe money kept by the appellant Sudha Choubey, from which, 25 notes, each of Rs. 100/-, were recovered from her possession. She has proved her signature on seizure memo Ex. P-6. Therefore, there is overwhelming evidence on record to prove seizure and recovery of currency notes from the appellant-Sudha Choubey.

Learned counsel for the appellant made an attempt to convince the Court that Ex. P-4, receipt of FSL contains different number. This doubt is cleared from a bare perusal of Ex. P-15. Moreover, though admissibility of FSL report Ex. P-72 has been challenged on the ground of the report having been written by the Assistant Statistical Examiner and not by a officer of the category specified under clause (e) of sub section (4) of Section 293 of Cr.P.C., no objection with regard to admissibility of report was raised at the time of examination of Investigating Officer, M.C. Sharma, P.W. 12. Had such objection been raised at that stage, prosecution had the opportunity to examine the concerned officer, who had prepared and submitted the report. However, in view of the admission of amount of Rs. 2,500/- with explanation and ample proof of recovery of Rs. 2,500/- from the possession of the appellant-Sudha Choubey and proved by reliable testimony of panch witnesses, Smt. Deepti Banerjee, P.W. 3 & Umedha Toppo, P.W. 10, the case of the prosecution on the point of acceptance and recovery cannot be thrown only on that ground. Though, learned counsel for the appellant relying upon the judgment in the case of Mohd. Iqbal Ahmed (supra), State of Madhya Pradesh Vs. Jiyalal, submitted that the grant of sanction is without due application of mind, after going through the order of sanction, Ex. P-69, it is reflected that the competent authority, after going through the material collected by the prosecution and placed before it applied its mind and recorded satisfaction before granting sanction. The said judgment is therefore, on facts, distinguishable.

On the contrary, in view of the judgment in the case of State of Madhya Pradesh vs. Jiyalal (supra) only on that account, conviction cannot be set aside when the appellant has failed to prove any prejudice. Moreover, evidence of Dhaniram Yadav, P.W. 9 shows that the relevant records were placed before the competent authority and the order was prepared at his instance.

As far as appellant-K.L. Dewangan is concerned, he has been convicted for abetment of commission of offence u/s 7, 13(1)(d) of the Act.

Section 12 of the Act provides for punishment for abetment of offences defined in Section 7 or 11 of the Act. It provides that whoever, abets any offence punishable u/s 7 or 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term, which shall not be less than six months but which may extend to five years and shall also be liable to fine. Abetment has not been defined under the Prevention of Corruption Act, 1988, therefore, meaning of abetment has to be borrowed from the provisions contained in Section 107 of the IPC.

Section 107 of the I.P.C. defines what the abetment is and according to the said definition, there are three clauses and if act of a person falls within the purview of anyone of them, then it amounts to abetment and thus punishable for the said offence either u/s 107 IPC or u/s 12 of the Act.

For the purposes of the present case, first and second clauses of Section 107 of the IPC are not germane and it is the third clause alone which is required to be looked into. It provides that a person abets doing of a thing, who intentionally aids by any act or illegal omission or "doing of that thing".

The word "aids" has been clarified under explanation appended to Section 107 of the IPC, which reads thus:-

Explanation-2. "Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

In the light of the aforesaid provision relating to abetment, and the evidence on record is required to be considered to find out whether the conviction of the appellant K.L. Dewangan is in accordance with law.

In the written complaint filed by the complainant in Ex. P-4, it has been clearly alleged that when the complainant met the appellant-K.L. Dewangan on 22-06-1992, he told that the complainant will have to pay 10% of the bill amount as bribe to the appellant-Sudha Choubey, then only payment of Rs. 38,998/- would be released. It is also stated in the complaint that when the complainant met the appellant-Sudha Choubey in her residence on 24-06-1992, the appellant-Sudha Choubey demanded bribe, which was settled at 7% of the total amount payable against the outstanding bills. She then told the complainant to give that bribe money to the appellant-K.L. Dewangan. In his evidence, Onkar Singh, P.W. 11 has clearly deposed that when he met the appellant-K.L. Dewangan in the office, then he told him that he will have to pay 10% of the bill amount, as told to him by the appellant-Sudha Choubey. He further deposed that when he met the appellant-Sudha Choubey, she told him to pay the bribe amount of Rs. 2,500/- to the appellant-K.L. Dewangan. It is therefore clear that right from the beginning of demand, the appellant-K.L. Dewangan was involved. The reliable and trustworthy evidence of the complainant-Onkar Singh, P.W. 11 proves that it was the appellant-K.L. Dewangan, who was acting in aid of other appellant-Sudha Choubey and through him, demand was made. This important evidence proves essential element of abetment i.e. an act of intentionally aiding of commission of offence, keeping in view the meaning of word "aids" as has come in explanation-2 of Section 107 of the IPC.

In para 8 of his evidence, the complainant has clearly deposed that when he met the appellant K.L. Dewangan in the office with bribe money and informed him that he has come with the arrangements, thereafter, the appellant-K.L. Dewangan took out the bills and'' obtained acknowledgement and at that time the appellant-Sudha Choubey arrived, who asked the complainant to hand over the bribe money to the appellant-K.L. Dewangan. The aforesaid evidence clearly establishes beyond all pale of doubt that the appellant-K.L. Dewangan was throughout involved and in fact, he was acting as an agent in intentionally aiding commission of offence, otherwise there was no reason for the appellant-Sudha Choubey to every time suggest that bribe money should be handed over to K.L. Dewangan. It is an important circumstance, from which, inference can be drawn regarding the appellant-K.L. Dewangan intentionally aiding commission of offences. There is clear evidence of handing over of bribe money to the appellant-K.L. Dewangan. Though, evidence shows that initially the complainant had sought to give money to the appellant-K.L. Dewangan, he did not take, but at the same time, suggested the complainant to give bribe money to the appellant-Sudha Choubey and when he again met Sudha Choubey, she told the complainant to hand over the bribe money to the appellant-K.L. Dewangan, thereafter, bribe money offered to the appellant-K.L. Dewangan, who accepted the same. The complainant has clearly deposed in para 8 of the testimony that bribe money was taken by the appellant to the office of the appellant-Sudha Choubey. The recovery of bribe money has been held proved from convincing evidence as discussed in paras hereinabove. Therefore, the complete chain of circumstances is established by proving offence of abetment by the appellant-K.L. Dewangan. More so because, even in his cross-examination, the complainant-Onkar Singh has reiterated that bribe money was given by him to the appellant-K.L. Dewangan.

Much emphasis has been laid on the submission that the appellant-K.L. Dewangan was not prepared to accept the bribe money, but the complainant was insisting. The submission cannot be accepted. It is not the case of the appellant-K.L. Dewangan nor his defence that he was coerced by the appellant-Sudha Choubey to accept bribe money on her behalf. The conduct of the appellant-K.L. Dewangan and Sudha Choubey in directing the complainant to hand over the bribe money to each other, only reflects that both of them were trying to play safe, but does not lead to conclusion that the appellant-K.L. Dewangan had no role in the matter. Though, initially the appellant-K.L. Dewangan did not take the money, but later on, he received the same and passed it on to the appellant-Sudha Choubey in her chamber. If the appellant-K.L. Dewangan had no involvement, there was no reason for him to take the currency notes in his hands and then give it to the appellant-Sudha Choubey.

Involvement of the appellant-K.L. Dewangan and his act of intentionally aiding and thereby facilitating commission of offence is also supported by strong corroborating evidence and positive report of phenolphthalein test. Both independent panch witnesses Smt. Deepti Banerjee, P.W. 3 & Umedha Toppo, P.W. 10 have clearly deposed that * hands of the appellant-K.L. Dewangan were also washed in the solution of sodium carbonate, which turned pink and solution was kept and sealed in bottles. The bottle containing hand wash of the appellant-K.L. Dewangan reported traces of phenolphthalein. The present is not a case, where the appellant-K.L. Dewangan has either come out with any defence of false explanation by the complainant or with the defence that under some mistaken belief, bribe money was taken by him from the complainant and given to the appellant-Sudha Choubey. Defence of the appellant-K.L. Dewangan is that he neither accepted nor passed on bribe money to the appellant-Sudha Choubey. The appellant-K.L. Dewangan has failed to establish this defence.

There is however one aspect of the matter, which requires interference in so far as conviction of the appellant-Kanhaiya Lal Dewangan u/s 13(1)(d) read with Section 12 of the Act is concerned. The appellant-K.L. Dewangan has been charged of commission of offence u/s 13(1)(d) with the aid of Section 12 of the Act, whereas Section 12 only provides for punishment for abetment of offence u/s 7 or 11 of the Act and in respect of the offence u/s 13(1)(d) of the Act, Section 12 of the Act has no application at all. Therefore, the appellant-K.L. Dewangan could not be convicted for commission of offence u/s 13(1)(d) with the aid of Section 12 of the Act for abetment of offence u/s 13(1)(d). Conviction of the appellant-K.L. Dewangan u/s 13(1)(d) of the Act, therefore cannot be sustained in law. In the final analysis, appeal of Smt. Sudha Choubey being without merit, as such, her conviction is affirmed and appeal is dismissed. As far as appeal of the appellant-K.L. Dewangan is concerned, conviction of the appellant-K.L. Dewangan u/s 7 read with Section 12 of the Act is affirmed. However, conviction of the appellant-K.L. Dewangan u/s 13(1)(d) is set aside. Accordingly, appeal of the appellant-K.L. Dewangan is partly allowed. As both the appellants are on bail, bail bonds stand cancelled and the appellants are directed to surrender before the learned trial Court for being sent to jail to serve out the remaining jail sentence imposed on them under the impugned judgment of conviction and order of sentence as ordered by the learned trial Court.