TMI Blog2012 (5) TMI 771X X X X Extracts X X X X X X X X Extracts X X X X ..... or the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter called the Act 1988 ) and under Section 120B of Indian Penal Code, 1860 (hereinafter called IPC ) and has been awarded the punishment of rigorous imprisonment for a period of 2 years for each count; whereas appellant Kalyan Mal has been convicted for the offences punishable under Section 13(1)(d) read with Section 13(2) of the Act 1988 and under Section 120B IPC and he has also been awarded the punishment of rigorous imprisonment for a period of 2 years on each count. 2. Facts and circumstances giving rise to this case are that: A. Rafiq (PW.1) filed a complaint on 16.11.1994 before the Anti- Corruptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants, has submitted that for constituting an offence under the Act 1988, the prosecution has to prove the demand of illegal gratification. Recovery of tainted money or mere acceptance thereof is not enough to fasten the criminal liability as the money could be offered voluntarily and the accused may furnish a satisfactory explanation for receipt of the money. The trap case should be supported by an independent eye- witness. The deposition of an interested witness requires corroboration. The conversation between the accused and the complainant at the time of demand and accepting the money must be heard/recorded by the Panch witness. If two views are possible, then the one in favour of the accused should prevail. In the instant case then th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med, Constable (PW.7) stated that he saw Kalyan Mal counting the money. The trap stood proved by the depositions of Rafiq (PW.1), R.C. Pareek (PW.3), Mohd. Rasheed (PW.6), Zaheer Ahmed (PW.7) and Keshar Singh (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 seisure memos etc. Dr. Bavel (PW.5) admitted the practice of donations by patients. Mr. R.C. Pareek (PW.3) and Mohd. Rasheed (PW.6) have been independent witnesses. 7. The courts below considered the facts properly and appreciated the evidence in correct perspective and then reached the conclusion that the charges stood fully proved against the appellants. The explanation furnishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 court may look for independent corroboration before convicting the accused person. (Vide: Ram Prakash Arora v. The State of Punjab AIR 1973 SC 498; Panalal Damodar Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying on the floor of the office, which were recorded. 10. This Court, after considering various judgments of this Court including Panalal Damodar Rathi (supra) and Smt. Meena Balwant Hemke (supra) held that acceptance of the submission of the accused that the 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 witness is necessary to be corroborated by another witness, as such evidence stands corroborated from the other material on record. The court further distinguished the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be given a complete go-bye as they provide for the safeguards to avoid false implication of a railway employee. 14. So far as the instant case is concerned, the appellants had been working under the health department of the State of Rajasthan. No provision analogous to the paragraphs contained in Railway Vigilance Manual, applicable in the health department of the State of Rajasthan at the relevant time had been brought to the notice of the courts below, nor had been produced before us. Therefore, it can be held that 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. 15. In the instant case, there is no contradiction in the depositio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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