G.S. Solanki, J.@mdashThe appellant has filed this appeal against the judgment dated 28.02.2005, passed by Special Judge(under Prevention of Corruption Act, 1988), Sagar in Special Case No. 6/2002, convicting him u/s 7 of the Prevention of Corruption Act and sentencing him to RI for 1 year with fine of Rs. 500/-, in default SI for 1 month.
2. It is undisputed that appellant/accused was acquitted of the charge u/s 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
3. In short, the prosecution case, is that on 13.06.2001, complainant Tulsiram Lodhi (PW-7) was standing at Jaisi nagar bus stand, for going to Sagar. Constable Sitaram carried him to Police Station Jaisi nagar, on the pretext that there was a warrant against him. Appellant Gokul Prasad Upadhyay (A.S.I.) when asked Sitaram(Constable) that why he brought complainant, Sitaram replied that complainant was running a gaming house. Appellant then beat him and confined him in the lock up, after snatching Rs. 500/- from his person. It is further alleged that Sitaram was released on bail but appellant(Assistant Sub Inspector) demanded further Rs. 500/- as bribe for exonerating him. He did not want to give the bribe therefore, he lodged a written report(Ex. P-6) to the SPE(Lokayukt) Sagar.
4. For the purpose of verifying the demand of bribe, a tape recorder and cassette was provided to complainant Tulsiram Lodhi, for recording the conversation regarding demand of bribe. After recording aforesaid conversation cassette was deposited with police, same was seized vide memo Ex. P-9. Transcript of tape was prepared vide Ex. P-8 in presence of panch witness Ramakant(PW-3).
5. During further investigation a trap was arranged and appellant/ accused was caught red handed. He was arrested. After usual investigation he was charge-sheeted.
6. Appellant/accused abjured his guilt and pleaded that since complainant was running a gaming house, therefore he arrested him. Due to this enmity he falsely implicated him.
7. On appraisal of evidence on record the learned Special Judge acquitted the appellant of the charge u/s 13(1)(d) read with 13(2) of the Prevention of Corruption Act but convicted and sentenced him u/s 7 of the said Act.
8. Learned Counsel for the appellant submitted that the trial Court erred in not appreciating the evidence on record in its proper perspective. Since tape of conversation regarding demand was not audible before the Court and other evidence regarding demand was not reliable, hence prosecution failed to prove the demand of bribe.
9. On the other hand, learned Counsel for the respondent/SPE justified and supported the finding recorded by the trial Court.
10. We have perused the impugned judgment, evidence and other materials on record.
11. Before the Court complainant Tulsiram(PW-7) himself admitted that appellant had not demanded Rs. 500/- from him. Story narrated in Ex. P-6 regarding demand of Rs. 500/-, therefore becomes suspicious. It is pertinent to note that despite not demanding Rs. 500/- by the appellant, complainant filed report(Ex.P-6) against appellant. In these circumstances, in our opinion, probability of false implication can not be ruled out.
12. PW-7 further deposed that next day he recorded the conversation, in which appellant/accused demanded Rs. 400/- for finishing the case, registered against him. According to him, he deposited recorded cassette in the office of SPE where transcript was prepared vide Ex. P-8. He admitted that during preparation of transcript sound was not understandable. He further admitted in cross examination(para 10) that tape was recorded by some dangerous person and that appellant/accused was sitting far away, during recording.
13. Panch witness Ramakant(PW-3) deposed that during preparation of transcript, sound of tape was not audible and he was unable to identify voice of complainant and appellant.
14. It is true that tape was not played during the examination of witness before the Court. During recording of statement of Panch witness Ramakant(PW-3), trial Court observed that " cassette was played, some words of transcript were found in cassette, but some words were missing in cassette.
15. Considering the facts that, where recorded cassette was not audible in the Court and panch witness Ramakant(PW-3) himself deposed that he was unable to understand the voice of complainant and accused, during preparation of transcript as well as in Court, the trial Court committed error in relying the transcript (Ex. P-8) as corroborative piece of evidence.
16. Considering the evidence of complainant Tulsiram(PW-7) in which he admitted that complainant had not demanded Rs. 500/-and further that tape was recorded by some dangerous persons and appellant was sitting far away during this process, it can not be said that testimony of Tulsiram remained unchallenged. Therefore, finding recorded by the trial Court that complainant was not cross examined regarding demand of money, is baseless and unsustainable.
17. Considering the evidence of complainant Tulsiram (PW-7) and panch witness Ramakant(PW-3), we are of the opinion that the prosecution failed to prove the demand of bribe by the appellant.
18. Resultantly, appeal is allowed and conviction and sentence of appellant, recorded by trial Court, is set aside.
19. The appellant is acquitted of the charge u/s 7 of Prevention of Corruption Act.
20. The appellant/accused is on bail his bail bond and security bond stand cancelled.
