Jharkhand High Court

C.B.I vs The State Of Jharkhand Through C.B.I on 24 January, 2024

Author: Subhash Chand

Bench: Subhash Chand

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Cr. Appeal (S.J.) No.290 of 2011

 (Against the Judgment of Conviction and Order of sentence dated 24th
March, 2011 passed by the Additional Sessions Judge-I-cum-Special Judge,
C.B.I., Dhanbad in R.C. Case No.5A/90D)
Ram Kumar Singh                           ....           Appellant
                              Versus
The State of Jharkhand through C.B.I.      .....         Respondent
                              PRESENT
           HON'BLE MR. JUSTICE SUBHASH CHAND
                              .....

For the Appellant : Mr. Pandey Ashok Nath Roy, Advocate Ms. Pragati Prasad, Advocate For the Respondent : Mr. Anil Kumar, A.S.G.I. Mr. Nitish Parth Sarthi, A.C. to A.S.G.I. .....

C.A.V. on 04.01.2024 Pronounced on 24.01.2024

1. Heard learned counsel for the appellant and learned A.S.G.I for

the respondent--C.B.I.

2. The instant criminal appeal is preferred on behalf of the

appellant against impugned Judgment of Conviction and Order

of Sentence dated 24th March, 2011 passed by the learned

Additional Sessions Judge-I-cum-Special Judge, CBI, Dhanbad

in R.C. Case No.5A/90D, whereby the appellant has been

convicted for the offence under Section 7 and 13(2) read with

13(1)(d) of the Prevention of Corruption Act, 1988. The

appellant has been sentenced to undergo rigorous

imprisonment for two years along with fine of Rs.5,000/- for

the offence under Section 7 and 13(2) read with 13(1)(d) of the

Prevention of Corruption Act, 1988 each and in default of

payment of fine he was further directed to undergo rigorous

Cr. Appeal (S.J.) No.290 of 2011

imprisonment for six months. Both the sentences were directed

to run concurrently.

3. The brief facts leading to this criminal appeal are that a

complaint was lodged by the complainant Rajeshwar Mistry

with these allegations that Ram Kumar Singh, Cashier, Balihari

Colliery, BCCL had made a demand of Rs.400/- as illegal

gratification from the complainant for releasing his pay for the

month of February, 1990 which had been unauthorizedly held

up by him and also for releasing salary of complainant regularly

in time for future. On this written complaint, the office of CBI

Branch, Dhanbad verified it and in his verification report dated

10th April, 1990 confirmed the allegations as made in the

written complaint as genuine and correct. During course of

investigation, it was also alleged that it was one of the duties of

the accused Ram Kumar Singh in capacity of Cashier Balihari

Colliery to disburse salary of labourers but the accused

unauthorizedly held up the salary with the unauthorized help of

J.N. Dubey, the then Clerk of Balihari Colliery. Arrangement was

made to lay a trap and to apprehend the accused red handed

while accepting illegal gratification for the complainant. All the

pre-trap formalities were observed and Sri S.K. Chakerborty,

Assistant Commissioner, Regiional Office, CMPF, Dhanbad and

M.P. Singh UDC, Legal Section, CMPF, Dhanbad associated with

the raiding party in capacity of independent witnesses. The

raiding party reached to the office of the accused at Balihari

Cr. Appeal (S.J.) No.290 of 2011

Colliery and all the raiding party took their position around the

office room of the accused Ram Kumar Singh, who was sitting

on a chair behind his office table. Seeing the complainant, the

accused after a brief conversation which was heard by the

witnesses as well as members of the raiding party, demanded

and accepted the tainted money amounting to Rs.400/- with his

right hand and kept the same in his left hand side upper pocket

of his shirt. The transaction was also seen by the witnesses as

well as members of the raiding party and after the complainant

gave the fixed signal by rubbing his forehead with towel, the

raiding party rushed into the office room of the accused and

the accused was challenged. The accused Ram Kumar Singh

turned pale and could not offer any explanation. The tainted

money amounting to Rs.400/- was recovered from the left hand

side upper pocket of the shirt of the accused and the number

and denominations of the 8 G.C. notes of Rs.50/- tallied with

the same given in the preliminary memorandum. The accused

was taken into police custody. The right hand fingures of the

accused were washed in the solution of sodium carbonate and

the milky solution immediately turned pink which was a positive

evidence that the accused had accepted the tainted money with

his right hand. When the linings of the upper left side pocket of

the shirt of the accused was washed in another solution of

sodium carbonate, the same also turned pink. The hand wash,

the pocket wash and the tainted money and the shirt were kept

Cr. Appeal (S.J.) No.290 of 2011

in separate bottle and covered respectively and the same were

sealed and signed by all the witnesses including the

complainant. After concluding the investigation, the I.O.

submitted the charge-sheet under Section 7 and 13(2) read

with 13(1)(d) of the Prevention of Corruption Act, 1988 against

the accused Ram Kumar Singh and cognizance of which was

taken by the Special Judge, CBI, Dhanbad.

4. The trial court framed the charge against the accused Ram

Kumar Singh for the aforesaid offence. The charge was read

over to him, who denied the charge and claimed to be tried.

5. On behalf of the prosecution to prove the charge against the

accused in oral evidence examined P.W.1- K.K. Biswas, P.W.2-

Mahendra Prasad Sinha, P.W.3-Sarup Krishna Chakerborty,

P.W.4-Raj Kumar Singh, P.W.5-Rajeshwar Mishtry (the

complainant), P.W.6-Uttam Chatterjee, P.W.-7 Sanat Kumar

Mukhopadhyay, P.W.-8 Radheshyam Kuril, P.W.-9 Sri Kamala

Prasad and P.W.10 Jyoti Kumar.

6. On behalf of the prosecution in documentary evidence adduced

sanction order Ext. 1, written complaint dated 10th April, 1990

Ext. 2/23, sealed shirt in envelope Ext.2/12, signature of P.W. 3

on pre-trap formalities Exts.2/14 to 2/17, , F.I.R. of the case

no.5(A)/90(D) dated 10th April, 1990 Ext.6, memorandum of

recovery dated 11th April, 1990 Ext.8, sealed phial containing

the right hand wash of the accused marked as 'R' Ext.2/6,

Cr. Appeal (S.J.) No.290 of 2011

Arrest memo Ext. 2/62, personal search memo dated 11th April,

1990 Ext. 2/63.

7. On behalf of the accused in oral evidence examined D.W.-1

Makardhwaj Mahato, D.W.-2 Dinesh Pandey, D.W.-3 Pradeep

Dey Sarkar, D.W.-4 Harsukh Lal Pappet and D.W.-5 Sri Ram.

8. On behalf of the accused in documentary evidence examined

xerox copy of charge sheet dated 2nd May, 1990 Ext.A,

photocopy of cash book payment dated 16th March, 1990 Ext.B,

carbon copy of warning letter Ext.C, photocopy of reply of

charge sheet, service particular and covering letter Exts. D to

D/2, two registers Exts.E & E/1 and sign of D.W.-4 on cash

book register Exts.A/1 to A/24.

9. The statement of accused under Section 313 of the Cr.P.C. was

recorded, wherein the accused denied the incriminating

circumstances against him and stated himself to be innocent.

10. The learned trial court after hearing the learned counsel for the

parties passed the impugned judgment of conviction against

appellant - Ram Kumar Singh for the offence under Sections 7,

13(2) read with 13(1)(d) of the Prevention of Corruption Act

and sentenced him accordingly.

11. The aforesaid convict/appellant being aggrieved with the

judgment of conviction and order of sentence preferred the

present criminal appeal on the grounds that the impugned

judgment of conviction and sentence is bad in the eyes of law.

The court below has not appreciated the evidence on record in

Cr. Appeal (S.J.) No.290 of 2011

proper perspective. The learned trial court has failed to take

into consideration the allegations levelled against the appellant

in regard to taking bribe is flimsy and concocted. The

preliminary inquiry/verification was fabricated in order to entrap

the appellant. The sentence passed by the learned trial court

was also too severe under the facts and circumstances of the

case. In view of the above, learned counsel for the appellant

prayed to set aside the impugned judgment of conviction and

sentence and allow the appeal acquitting the appellant.

12. Heard the learned counsel for the appellant, learned A.S.G.I.

for the respondent and perused the materials available on

record.

13. In order to decide the legality and propriety of the impugned

judgment of conviction and sentence passed against the

appellant, the evidence adduced on behalf of the prosecution is

reproduced herein.

13.1 P.W.-1 K.K. Biswas, in his examination-in-chief says in the

year 1990 he was P.A. to General Manager. At that time K.M.P.

Verma was the General Manager. The sanction order was typed

on his dictation and bears his signature which he identify and

was marked Ext.1.

In cross-examination, this witness says that Mr. Verma is

still doing job in W.C. and not in BCCL. At the time of sanction

he was Chief General Manager and he was his P.A. He cannot

say while according sanction Mr. Verma had examined the

Cr. Appeal (S.J.) No.290 of 2011

papers of note whether Mr. Verma had applied judicial mind he

is not aware.

13.2 P.W.-2 Mahendra Prasad Sinha in his examination-in-chief

stated that in the year 1990 he was working in C.M.P.F. office

as U.D.C. He had received a letter dated 10th April, 1990 from

A.D.M., Headquarter in which he was directed to report in the

C.B.I. office on 11th April, 1990. On 11th April, 1990 he reached

to the C.B.I. office. The complainant Rajeshwar Mystry and the

officers of the C.B.I. in eight numbers were also present there.

The complainant read over the complaint and he told that his

salary was held up and Ram Kumar Singh had been demanding

Rs.400/- from him. All the office bearers were introduced to

each other. A powder was put on the paper and witness Mr.

S.K. Chakraberty was told to touch the same. The solution of

the same was also made in a glass of water having put the

hand thereon, it became pink, therefore, the same solution was

taken in a bottle and sealed. The signature was also put by all

the officers of the C.B.I. present there. The paper on which the

powder was put, same was also sealed on which he also put his

signature which was marked Ext.2. Rupees 400/- given by the

Rajeshwar Mystry was also rubbed with the powder and same

was given to him with direction that on demand he has to give

the same.

In cross-examination, this witness says that they reached

to Balihari Colliery after the pre-trap formalities to the office of

Cr. Appeal (S.J.) No.290 of 2011

the accused--Ram Kumar Singh. The complainant Rajeshwar

Mystry went to meet him, Ram Kumar behind whom he, R.S.

Kuril and people of C.B.I. were there. He stood nearby the

door. Rajeshwar Mystry went inside the office. He exchanged

conversation with Ram Kumar which was not heard by him. On

indication being made by Rajeshwar Mystry, all of them went to

room and challenged the accused, who had accepted the illegal

gratification of Rs.400/-. The same was recovered from his

pocket along with some papers which he had put in his pocket

by his right hand. His right hand was put in a solution in two

glass and same become pink and it was also sealed in one

phial. The recovery memo of the same was prepared which was

marked Ext.2/6. On the recovery memo of the same he put his

signature which was marked Ext.2/8. On the bottle material

Ext.1 to I/2, envelope material Ext.II to II/1 and on the rupees

Ext.II to III/7 were marked. The shirt was also sealed in

envelope which was marked Ext.2/12. The material Ext.II/2 was

opened in the open court. From it a shirt was brought out

which is material Ext.IV.

In cross-examination, this witness says that number of

the notes were noted in the C.B.I. office, and same were tallied

with the notes which was received after the raid. All the

documents were prepared in his presence. The numbers of the

note which was noted on the paper, same was placed on

record. He had seen that paper.

Cr. Appeal (S.J.) No.290 of 2011

13.3 P.W.-3 Swaroop Krishan Chakraborty in his examination-

in-chief says that on 11th April, 1990 he was Assistant

Commissioner-II in C.M.P.F. On that day he had gone to C.B.I.

office Dhanbad. Another witness from his office, Mr. M.P. Singh

was already present there. In total, they were nine in number.

The name of complainant was Rajeshwar Mystry and the

complaint petition was read over to all. Powder was applied on

a paper and he was asked to touch it. He touched the same

with his right hand and a glass of water formed in it, in which

he dipped his right hand and the colour of the same turned

pink. The said solution was kept in a bottle and was sealed. He

also put the signature on the bottle which is marked material

Ext.I. It was sealed in an envelope, on that also he put his

signature which is marked material Ext.II and his signature on

it was marked as Ext.2/13. Rajeshwar Mystry brought Rs.400/-,

the same was rubbed with the paper and again it was handed

over to him. All the pre-trap formalities were completed which

is in four papers. He put his signature there was which were

marked Exts.2/14 to 2/17 respectively. Thereafter they

proceeded to Balihari Colliery office at 9.45. The accused was

sitting in his office. Complainant reached to him, behind

complainant M.P. Singh was there and thereafter M.P. Singh

stood at the door of the office. Having seen Rajeshwar Mystry,

Ram Kumar Singh made demand of money. Rajeshwar Mystry

handed over the same to him which was accepted by Ram

- 10 -

Cr. Appeal (S.J.) No.290 of 2011

Kumar Singh by his right hand and put the same in his left side

upper pocket of the shirt. At the same time, all the officers of

the C.B.I. reached there and challenged him. On being

challenged the accused turned pale. The search was made of

him and Rs.400/- was recovered from him. The same was

sealed in an envelope and the signature was put on the same

by him which was marked material Ext.II/1. On the recovery

memo of the same his signature was marked Ext.2/18. The

money which was recovered are material Ext.III to III/7.

Thereafter in the solution which was contained in a glass, the

right hand of the accused was dipped and the colour of the

same turned pink. The phial of the same solution was sealed

and in another glass the pocket of the shirt was dipped

whereby the colour of the same also turned pink. This solution

was also contained in another bottle and was sealed. The shirt

of the accused was also sealed in a envelope which was marked

Ext.II/2 and the recovery memo of the same on which he put

his signature was marked Ext.2/22.

In cross-examination, this witness says when he reached

to the accused the conversation which took place between the

accused and the complainant, the same was not heard by him

but he had seen the complainant from his own eye given

money to the accused.

13.4 P.W.-4, Raj Kumar Singh, in his examination-in-chief stated

that in the year 1990 he was Pay Clerk in Kacchi Balihari

- 11 -

Cr. Appeal (S.J.) No.290 of 2011

Colliery. At that time cashier was Ram Kumar Singh. Rajeshwar

Mystry was also doing work there. In the salary sheet Stop

Paymet is in the writing of J.N. Dubey which he identified and

marked Ext.3.

In cross-examination, this witness says that labours were

not paid directly by the cashier.

13.5 P.W.-5 Rajeshwar Mistri (the complainant) in his

examination-in-chief says that he reached to the C.B.I. office

and his complaint was registered there. He reiterated all the

contents which was made in the complaint by him. He also

corroborated the pre-trap memorandum proceeding which was

conducted by the C.B.I. officers and thereafter he along with

Officers of the C.B.I. reached to the office of cashier Ram

Kumar Singh and he on his demand gave him Rs.400/-. The

number of the notes had already been noted in the pre-trap

memorandum and hand of the accused were put in a solution

which turned pink. His left-hand side pocket of the shirt was

also dipped in the solution and same also turned pink.

In cross-examination this witness says that no salary for

the Month of February, 1990 was given to him and when he

reached to the bank to withdraw his salary it was told that

same was not transferred in his account. He is not aware by

whose order his payment of the salary was stopped. He made

complaint to C.B.I. in the month of April.

- 12 -

Cr. Appeal (S.J.) No.290 of 2011

13.6 P.W.-6 Uttam Chatterjee in his examination-in-chief says

that in the year 1990 he was Finance Manager in Balhari

Colliery and Ram Kumar Singh was Senior Cashier there. The

salary sheet which is marked Ext.3 is of February, 1990. On the

salary sheet of Rajeshwar Mistry "stop payment" is endorsed by

J.N. Dubey. J.N. Dubey was not authorized to stop salary.

In cross-examination, this witness says that it is true that

on 2nd May, 1990 Deputy C.M.E./Agent, J.N. Dubey had

unauthorizedly stopped the salary of Rajeshwar Mistri.

13.7 P.W.-7 Sanat Kumar Mukhopadhya in his examination-in-

chief says that in the year 1990 he was Senior Scientific Officer

C.F.S.L. Kolkata. On 14th May, 1990 his office received three

sealed glass bottles along with some documents vide letter

no.2104/5(A)/90(D) dated 11th May, 1990 from the office of

S.P. C.B.I., Dhanbad which were marked as R, S and D. He

compared the impression of the seal on the bottle and he found

that seals were intact. Then he opened each of the glass bottle

in which pink colour solution was contained. He examined

solution of each of the bottle and found that bottle contained

the sodium carbonate and phenolphthalein were detected in

each of the solution of the glass bottle. He prepared the report

and got typed the same which was marked Ext.4. This report

was sent to S.P. C.B.I., Dhanbad.

In cross-examination, this witness says that material Ext.I

has some liquid solution and other two bottles appear to be

- 13 -

Cr. Appeal (S.J.) No.290 of 2011

empty. He fairly says that as the cork are not air tight, so the

liquid are fallen out or evaporated.

13.8 P.W.-8 Radheshyam Kuril in his examination-in-chief says

that in the year 1990 he was posted as Sub-Inspector in C.B.I.

Dhanbad Branch. He was the member of the trap team. On 11th

April, 1990 he along with another member of C.B.I. participated

in the trap. He narrated the pre-trap formalities in his

examination-in-chief. He also corroborated the prosecution

story in his examination-in-chief.

In cross-examination, this witness says that it is not

correct that he and the other member of pre-trap formalities

had not washed their hands with the soap. No sketch map of

the place of occurrence was prepared. The money was

recovered from the accused in his presence. It is correct to say

that he had not told to the Investigating Officer that he had

seen and heard the occurrence.

13.9 P.W.-9 Kamala Prasad in his examination-in-chief says that

in the year 1990 he was A.S.I. in C.B.I. Dhanbad Branch. He

was also the member of the trap team. He also narrated the

pre-trap proceeding and post trap proceeding and also

corroborated the prosecution story.

In cross-examination, this witness says that preliminary

memorandum was prepared on the dictation of Jyoti Babu. At

the last page names of other witnesses were typed. Witnesses

- 14 -

Cr. Appeal (S.J.) No.290 of 2011

put their signature on the same which was in three pages. He

also put the signature on the same.

13.10 P.W.-10 Jyoti Kumar in his examination-in-chief says that

in the year 1990 he was posted as Inspecter in C.B.I. Dhanbad

Branch. He registered the F.I.R. of R.C.5/90. On 10th April, 1990

it was registered against Sri Ram Kumar Singh. The complaint

was made by Rajeshwar Mistri to this effect that his salary for

the month of February, 1990 was held up by Ram Kumar Singh

and for releasing the same he made the demand of Rs.400/-.

The complaint was verified by S.I. Sunil Sharma by the order of

the S.P., C.B.I., Dhanbad and on verification he found the

allegations true and correct. The investigation of this case was

also handed over to him. He conducted the investigation. He

recorded the statement of all the members of trap team

including the independent witness M.P. Singh. After concluding

the investigation he filed charge-sheet against the accused Ram

Kumar Singh.

In cross-examination, this witness says that he did not

send the tainted money to C.F.S.L. Kolkata for examination. It

is true that the tainted recovered money can be ascertained

only after examination whether on the same phenolphthalein

powder was rubbed or not. The sanction for prosecution was

obtained by him from the competent authority i.e., the S.P.

Saheb, who accorded the same after perusal of the papers.

- 15 -

Cr. Appeal (S.J.) No.290 of 2011

14. Whether from the evidence adduced on behalf of the

prosecution i.e., oral and documentary the charge framed

against the appellant--convict is made out or not, it is relevant

herein to reproduce the Sections 7 and 13 of the Prevention of

Corruption Act, 1988 which reads as under :

"7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extent to five years and shall also be liable to fine.

13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,-

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he, -

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of

- 16 -

Cr. Appeal (S.J.) No.290 of 2011

pecuniary resources or property disproportionate to his known sources of income.

Explanation.- For the purpose of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

(2) Any public servants who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. "

15. From the evidence adduced on behalf of the prosecution, it is

proved that the appellant--convict had made demand of

Rs.400/- for disbursement of salary of February month and also

disbursement of salary of next month of future in time from the

complainant Rajeshwar Mistri. This demand is proved by

P.W.-5 Rajeshwar Mistri who is complainant. The other

members of trap team who reached immediately there

have seen the acceptance of Rs.400/- by the

appellant--convict Ram Kumar Singh which was given

to him by the complainant. Immediately, thereafter, all the

members of the pre-trap team challenged the appellant Ram

Kumar Singh and from his left upper pocket of the shirt

Rs.400/- were recovered. There is also evidence that these

400 rupees which were 8 G.C. notes of Rs.50 each were

rubbed in phenolphthalein powder. Their numbers and

denomination were also noted in pre-trap memorandum

papers. The statement of the complainant and the

statement of other members of the trapping team were

also corroborated with this fact that the right hand of

the appellant/convict by which he took 8 G.C. notes in

- 17 -

Cr. Appeal (S.J.) No.290 of 2011

his right hand and put the same in his upper pocket of

his left side pocket of his shirt were dipped in a solution

of sodium carbonate which turned into pink colour. The

notes which were recovered from the pocket of the

appellant/convict their numbers along with

denomination tallied with the numbers and

denomination of the notes which were noted in the pre-

trap proceeding papers. Not only this, the solution which

turned pink was kept in 3 phials. C.F.S.L. Kolkata in its

report confirmed that same contained sodium

carbonate and phenolphthalein as proved by P.W.-7

Sanat Kumar Mukhopadhyay.

16. So far as the plea raised on behalf of the appellant that

out of three bottles, two bottles were empty is

concerned, during cross-examination the explanation of

the same was given by P.W.-7 Sanat Kumar

Mukhopadhyay that on account of lack of air tight cork,

the liquid might have fallen out or evaporated. So far as

the notes which was also rubbed with the phenolphthalein

powder admittedly were sent to C.F.S.L. for examination but

the same is proved from the testimony of the prosecution

witness who were members of the trapping team have stated

that in their presence, the eight G.C. notes were rubbed in a

powder after having noted their numbers and denominations

and these eight G.C. notes were thereafter handed over to the

- 18 -

Cr. Appeal (S.J.) No.290 of 2011

complainant Rajeshwar Mistri who was to give the same on

demand being made by the appellant--convict. Therefore, the

demand and acceptance of the gratification is proved

from prosecution evidence.

17. The three Judges Constitution Bench of Hon'ble Apex Court in

the case of Neeraj Dutta vs. State (NCT of Delhi) reported

in 2023 (4) SCC 731 at paragraphs 88, 93 and 94 has held as

under :

"88. What emerges from the aforesaid discussion is summarised as under:

88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.

- 19 -

Cr. Appeal (S.J.) No.290 of 2011

88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.

88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.

93. In this regard, we would like to reiterate what has been stated by this Court in Swatantar Singh v. State of Haryana "6. ... Corruption is corroding, like cancerous lymph nodes, the vital veins of the body politic, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke."

94. The above has been reiterated in A.B. Bhaskara Rao v. CBI by quoting as under from State of M.P. v. Shambhu Dayal Nagar :

(Shambhu Dayal Nagar case, SCC p. 701, para 32) "32. It is difficult to accept the prayer of the respondent that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption.

It has deep and pervasive impact on the functioning of the entire country. Large-scale corruption retards the nation-building activities and everyone has to suffer on that count."

18. The Hon'ble Apex Court in the case of K. Shanthamma

versus State of Telangana reported in (2022) 4 SCC 574

at paragraphs 10 and 11 has held as under :

"10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public

- 20 -

Cr. Appeal (S.J.) No.290 of 2011

servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act.

11. In P. Satyanarayana Murthy v. State of A.P, this Court has summarised the well-settled law on the subject in para 23 which reads thus :

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."

19. The Hon'ble Apex Court in the case of N.V. Subba Rao

versus State through Inspector of Police, CBI/SPE,

Visakhapatnam, Andhra Pradesh reported in (2013) 2

SCC 162 at paragraph 42 has held as under :

"42. Insofar as the charge under Section 13(1)(d) read with Section 13(2) of the PC Act is concerned, the ingredients of that offence are viz.: (a) that the accused should be a public servant; (b) that he should use some corrupt or illegal means or otherwise abuse his position as a public servant; (c) he should not have obtained a valuable thing or pecuniary advantage; and (d) for himself or any other person, and we have already noted the materials placed by the prosecution to substantiate the abovesaid offence."

20. So far as the sanction as required under Section 19 of the

Prevention of Corruption Act, 1988 is concerned, the same has

been proved by the P.W.-1 K.K. Biswas as Ext.1. This witness

was the P.A. to the sanctioning authority to whom the sanction

was dictated. During cross-examination of this witness, the

defence could not shake the testimony of this witness on the

point that the sanctioning authority was not competent.

21. After perusal of the evidence i.e., oral and documentary

adduced on behalf of the prosecution, the charge framed

against the appellant--convict under Section 7 and Section

13(2) read with Section 13(1)(d) of the Prevention of

- 21 -

Cr. Appeal (S.J.) No.290 of 2011

Corruption Act, 1988 is proved beyond reasonable doubt.

Therefore, the impugned judgment of conviction passed by the

learned trial court needs no interference.

22. So far as the sentence passed by the learned trial court is

concerned on the point of quantum of sentence, the learned

counsel for the appellant has submitted that the appellant -

convict has been facing trial since 1990 to 2011 and thereafter

since 2011 he is facing this appeal. It is further submitted by

the learned counsel for the appellant that the appellant has

served out the sentence of 21 days and contended to release

the appellant on the period which he had already served out

and in support of his contention relies case law (Sarupchand v.

State of Punjab reported in AIR 1987 SC 1441).

23. Per contra, learned A.S.G.I. appearing for the C.B.I. has

contended that the minimum sentence for the offence under

Section 13(2) read with 13(1)(d) of the P.C. Act, 1988 is one

year, as such, the appellant cannot be released on having

served out the sentence of 21 days.

24. From the impugned judgment of conviction and sentence, it

transpires that the appellant was sentenced to undergo

rigorous imprisonment for two years along with fine of

Rs.5,000/- for the offence under Section 7 and 13(2) read with

13(1)(d) of the Prevention of Corruption Act, 1988 each.

25. At the time of commission of offence in the year 1990, the

offence under Section 7 of the P.C. Act, 1988 was punishable

- 22 -

Cr. Appeal (S.J.) No.290 of 2011

with imprisonment which shall not be less than six months but

may extend to five years and was also liable to fine. The

offence under Section 13 of the P.C. Act, 1988 is punishable

with imprisonment for a term which shall not be less than one

year but which may extend to seven years and shall also be

liable to fine.

26. Obviously the appellant has been facing trial since 1990

to 2011 and he has been facing appeal since 2011 till

date. The same is also one of the mitigating

circumstance to reduce the sentence but the offence

under Section 13(2) read with 13(1)(d) of the P.C. Act

being punishable with minimum sentence of one year,

the appellant cannot be released on having served out

the sentence of 21 days. Taking into consideration the

fact that period of 21 years which took in conclusion of

the trial and further more than 12 years in the appeal

which the appellant has been facing and also the age of

the appellant who is now aged about 72 years, the

sentence inflicted by the learned trial court is being

reduced from 2 years to the minimum 1 year which is

awarded for both the offence under Sections 7 and

13(2) read with 13(1)(d) of the P.C. Act, 1988.

27. The Hon'ble Apex Court in the case of Surain Singh vs. State

of Punjab reported in (2009) 4 SCC 331 at paragraphs 11 to

13 has held as under :-

- 23 -

Cr. Appeal (S.J.) No.290 of 2011

"11. The High Court has analysed in great detail the evidence to show that the alleged animosity has not been established. Two witnesses, PWs 2 and 3 in detail had referred to the factual scenario and nothing discrepant has been brought on record to cast any doubt on the credibility of their evidence.

12. Day in and day out the gigantic problem of corruption in the public servants is on the increase.

"32. ... Large-scale corruption retards the nation-building activities and everyone has to suffer on that count. ... corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post."

13. Considering the peculiar facts of the case, we are of the view that the custodial sentence of one year, which is minimum prescribed, would meet the ends of justice."

28. In view of the above analysis of evidence and settled legal

propositions of law as laid down by the Hon'ble Apex Court, this

criminal appeal is partly allowed.

29. The impugned Judgment of Conviction dated 24th March,

2011 passed by the learned Additional Sessions Judge-I-cum-

Special Judge, CBI, Dhanbad in R.C. Case No.5A/90D is

affirmed and the and Order of Sentence is hereby

modified from 2 years to 1 year. The fine amount shall

remain same as awarded by the learned trial court.

30. The appellant is on bail, his bail bonds are cancelled and he is

directed to surrender before the learned trial court, who would

send him jail to serve out the sentence.