R.P.S. YADAVversusCENTRAL BUREAU OF INVESTIGATION

                       [2015] 1 S.C.R. 789

                           R.P.S. YADAV                                 A
                                  v.
           CENTRAL BUREAU OF INVESTIGATION
              (Criminal Appeal No.9 of 2012)
                       JANUARY 28, 2015
                                                                        B
     [FAKKIR MOHAMED IBRAHAIM KALIFULLA AND
            ABHAY MANOHAR SAPRE, JJ.]

       Prevention of Corruption Act, 1988 - ss. 7, 13(2) rw s.
  13(1 )(d} - Public servant taking gratification for an official act   C
 - Appellant-MCD employee allegedly took bribe from the
 complainant for issuance of licence - Conviction and
·sentence of the appellant u/ss. 7, 13(2) rw s.13(1}(d) by the
 courts below, on the basis of the evidence of the complainant
 and the trap witnesses - Sustainability of - Held: Not                 D
 sustainable - No legally acceptable evidence either from the
 complainant or from the other so called independent witness
 or the shadow witness in order to show that the mandatory
 requirement for conviction ulss. 7, 13(2) read with 13(1 )(d)
 namely, the demand, ·acceptance and recovery was                       E
  chronologically proved as against the appellant - Thus, the
 order of conviction and sentence by the courts below set
 aside.

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
                                                                        F
 No. 9 of 2012.

      From the judgment and Order dated 08.04.2011 of the
 High Court of Delhi at New Delhi in criminal Appeal No. 107
 of 2002.
                                                                        G
     Brajesh Kumar Singh, Anil Kumar Tandale for the
 Appellant.

      Vibha Dutta Makhija, Rashmi Malhotra, Disha Vaish,
 Arvind Kumar Sharma for the Responsdent.
                            789                                         H
    790       SUPREME COURT REPORTS              [2015] 1 S.C.R.


A         The following Order of the Court was delivered

                               ORDER
       1. This appeal is directed against the conviction of the
  appellant under Sections 7 and 13(2) read with Section 13(1 ){d)
B of the Prevention of Corruption Act, 1988. The appellant was
  sentenced to undergo simple imprisonment for a period of two
  years for the offence under Section 7 along with a fine of Rs.
  3000/- with a default clause and for a period of two and a half
  years with a fine of Rs. 1000/- with the usual default clause for
C the offence under Section 13(2) read with 13(1 )(d).
        2. The case of the prosecution as narrated before the
  courts below was that P.W. 3 Hamid Khan, the complainant who
  was running a tailoring shop at F-237, New Seemapuri, Delhi
  applied for a licence in the year 1994 to the Municipal
D Corporation of Delhi [for short 'the M.C.D.'), Health Department
  located in Shahdara Zone, Delhi. In April, 1995, he received a
  letter from M.C.D. calling upon him to furnish some documents
  for running the tailoring shop. After furnishing those documents
  when no further communication was forthcoming from the
E M.C.D., he approached the appellant who was an employee
  in the M.C.D., who was the concerned person dealing with his
  application.
       3. According to P.W. 3, when he met the appellant on 5th
  May, 1995 at 3:00p.m. in the office of the appellant, the
F appellant informed him that to carry out the issuance of licence
  to him, P.W. 3 will have to pay a fee and that he should pay a
  sum pf Rs. 1,500/- (Rupees One thousand five hundred) by way
  of bribe amount. As P.W.3 - the complainant was not willing
  to pay the bribe amount he stated to have preferred a complaint
G with the respondent-Central Bureau of Investigation [for short
  'the C.B.1.'J who in turn organised a trap and along with P.W. 3
  - the complainant and a shadow witness P.W. 6 was also
  arranged. The formalities for carrying out the trap were all set
  on 8th May, 1995. P.W. 3- complainant along with P.W. 6, the
H shadow witness went to the office of the appellant on 9th May,
       R.P.S. YADAV v. CENTRAL BUREAU OF                    791
                  INVESTIGATION
1995 and met the appellant and in the course of the                A
conversation when P.W.3 - complainant inquired as to whether
his job for issuance of licence was carried out, the appellant
stated to have answered in the affirmative and in turn wanted
to know whether his demand of payment of bribe was ready.
      4. When P.W. 3 - the complainant informed him that he        B
has brought what was demanded by the appellant, the appellant
directed P.W. 3 the complainant to go along with A2, one
Janakraj to whom P.W. 3 was directed to handover the money,
i.e., the demanded bribe money. Thereafter A2 Janakraj is
stated to have taken P.W. 3 along with P.W. 6 to a nearby park     C
outside the office of M.C.D. where the money was stated to have
been handed over to A2 and thereafter as per the signal waived
by P.W. 6, the C.B.I. party reached the spot and A2 was
confronted from whom the money paid by P .W. 3 was recovered
and the hand wash was also taken. When A2 pleaded with the         D
C.B.I. official that he never demanded and that what was paid
to him by P.W. 3 was at the instance of the appellant and A2
was directed by the C.B.I. officials to go to the chamber of the
appellant and carry out directions of the appellant without
showing any other gesture. A2, as directed, stated to have gone    E
into the chamber of the appellant along with P.Ws. 3, 6 and
others. It was based on the above narration of the prosecution,
the charge was laid against the appellant along with A2 -
Janakraj.
     5. The key witnesses examined in support of the charge        F
of the demand, acceptance and recovery as against the
accused were P.Ws. 3 and 6 namely, the complainant and the
shadow witness. The trial court after considering the entire
evidence ultimately found that A2 - Janakraj was not guilty of
the charge of of the charges made against him and acquitted        G
him. The appellant was convicted for the offence referred to
above and was imposed with the sentence as mentioned
above. The High Court having confirmed the con~iction and
sentence imposed on the appellant, the appellant is before us.
     6. We have heard Mr. Brajesh Kumar Singh for the              H
    792       SUPREME COURT REPORTS                [2015] 1 S.C.R.


A appellant and Ms. Vibha Datta Makhija, learned senior counsel
  for the C.B.I. We have also made our earnest endeavour to
  ascertain whether for establishing the charge under Section 7
  as well as Section 13(2) read with Section 13(1 )(d) of the
  Prevention of Corruption Act, the fundamental requirement of
B demand, acceptance and recovery of the bribe money was
  convincingly proved against the appellant.
          7. In that respect, we found that evidence of P.Ws. 3 and
    6 were more relevant as they were the complainant and the trap
    witnesses. When we perused the evidence of P.W. 3 who
c   turned hostile and was cross-examined at length by the
    respondent up to the point of recovery fr.om A2 based on the
    alleged direction of the appellant is concerned, we do not find
    any conflict. In other words, the narration as made by P.W. 3
    as well as P.W. 6 who were the key witnesses speak about
0   the factum of demand and acceptance of bribe, were to some
    extent consistent in narrating the event up to the point of the
    demand of Rs. 1500/- (Rupees One thousand five hundred) as
    tainted notes to accused Janakraj at the park which was located
    outside the office of M.C.D.
E         8. Thereafter, when we wanted to ascertain as to the case
    of the prosecution that the said accused Janakraj carried the
    direction of the appellant by handing over the tainted money to
    the appellant and as to whether such tainted currency notes
    were recovered from the appellant, we find that there was no
F   acceptable legal evidence to that effect. We can profitably refer
    to the evidence of P.W. 3 who stated initially that the recovery
    of tainted currency notes after Janakraj was taken to the
    chamber of the appellant was from the right side pant pocket
    of accused Janakraj. Immediately after making the said
G   statement, P.W. 3 took diametrically opposite stand and said
    that it was not recovered from accused Janakaraj but was
    recovered from the appellant. Immediately thereafter he went
    on to state that he did not remember whether in his 161
    Statement, stated that the money was recovered from the
    pocket of the appellant and not from the pocket of Janakaraj.
H   In fact, P.W. 3 was confronted with his 161 statement where it
        R.P.S. YADAV v. CENTRAL BUREAU OF                    793
                   INVESTIGATION
.was not so recorded. He also confirmed in the cross                 A
examination that hand wash of Janakaraj was taken by allowing
him to dip his left hand fingers in a freshly prepared colourless
 solution of sodium carbonate which turned pink.
     9. Going by the above version of P.W. 3, it was clear that
both on the first occasion when accused Janakraj was                 B
confronted by the officials of C. B. I. the proc~ss of dipping his
fingers in the solution was carried out and the said process was
repeated afresh after he was taken to the chambers of the
appellant. Secondly, nowhere in the evidence of P.W. 3 either
in chief or in the cross we could deduce any statement to the        c
effect that at any point of time the hand wash of the appellant
was taken in order to show that after the initial recovery from
accused Janakraj the process was continued to ensure that the
demand of the appellant and acceptance of the bribe money
through Janakraj was completed by accepting the money from           D
accused Janakraj and ultimately recovery was also effected
from the appellant by the usual practice of hand wash of the
appellant.
     10. In fact, we do not find any such legally acceptable
evidence either from P.W. 3 or from the other so called              E
independent witness P.W. 6 or the shadow witness in order to
show that the mandatory requirement for conviction under
Sections 7 and 13(2) read with 13(1 )(d) namely, the demand,
acceptance and recovery was chronologically proved as against
the appellant. In the light of our above conclusion based on the     F
analysis of the evidence led before the Court, we are
constrained to hold that the conviction imposed on the appellant
by the trial court as well as confirmation of the same by the High
Court can.not be sustained.
     11. The appeal succeeds and the impugned judgment is            G
set aside. The appellant is stated to be on bail. His bail bonds
shall stand discharged and his sentence is set aside.
Nidhi Jain                                         Appeal allowed.