Karnataka High Court
Sri L.N.Mohan Kumar S/O ... vs State Of Karnataka on 20 December, 2023
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.101965 OF 2023
BETWEEN:
SRI L.N.MOHAN KUMAR
S/O LAXMINARSIMHAGOWDA
AGED ABOUT 58 YEARS
JOINT COMMISSIONER
EXCISE DEPARTMENT
HOSAPETE DIVISION, HOSAPETE
R/O NAGAVALLI GRAMA
TUMKUR RURAL
TUMKUR - 572 118.
... PETITIONER
(BY SRI NEELENDRA D.GUNDE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY
LOKAYUKTA P.S.BAGALKOTE
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR
HIGH COURT BUILDING
DHARWAD - 580 008.
2. SRI SRIDHAR DODDI
THEN POLICE INSPECTOR
ACB, BALLARI
REPRESENTED BY THROUGH
2
SPECIAL PUBLIC PROSECUTOR
HIGH COURT BUILDING
DHARWAD - 580 008.
... RESPONDENTS
(BY SRI ANIL KALE, SPL. PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER DATED 30.04.2022
PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE AND
SPECIAL JUDGE (P.C. ACT), BALLARI (SITTING AT HOSAPETE) IN
SPL. CASE NO. 5002/2022 THEREBY TAKING COGNIZANCE FOR
THE OFFENCES P/U/SEC. 7(a) OF PREVENTION OF CORRUPTION
ACT, AS AGAINST PETITIONER.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 17.11.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question
proceedings in Special Case No.5003 of 2021 with particular
challenge to the order dated 30-04-2022 by which cognizance is
taken for offences punishable under Section 7(a) of the Prevention
of Corruption Act, 1988 (hereinafter referred to as 'the Act' for
short) against the petitioner.
2. Heard Sri Neelendra D.Gunde, learned counsel appearing
for the petitioner and Sri Anil Kale, learned Special Public
Prosecutor appearing for the respondents.
3. Facts, in brief, adumbrated are as follows:-
The petitioner is an officer in the Department of Excise
working in the cadre of Joint Commissioner. On 20-07-2019, the 2nd
respondent, the then Anti Corruption Bureau claims to have secured
certain credible information that the petitioner has collected
Rs.12,00,000/- from various wine shops and bars and is carrying it
in the car. On the same day, at about 2.00 p.m. a crime comes to
be registered for offence punishable under Section 7(a) of the Act
and the crime so registered is sent to the concerned Court records
of which would reveal that it reached the Court at 8.00 p.m. At
about 4.30 p.m. the Government vehicle which was given to the
petitioner of him being the Joint Commissioner was way-laid on NH-
150. The petitioner was not in the vehicle. The driver was searched
and was found in possession of cash of Rs.1,500/-. But, the search
of the car led to Rs.11,36,500/- being present in the boot of the car
which was seized.
4. After such seizure, one Sri N.T. Venkatesh filed an affidavit
before the concerned Court producing necessary documents and
claiming that the money belonged to him as he had given to the
driver for its transportation. The application, after hearing the
prosecution, was allowed and the entire money was handed over to
Sri. N.T. Venkatesh. After handing over of the money, the 2nd
respondent/ACB seeks sanction to prosecute the petitioner for the
aforesaid offence and sanction is granted on 26-04-2021, after
which when charge sheet was presented before the concerned
Court. The concerned Court takes cognizance for the offence
punishable under Section 7(a) of the Act against the petitioner. It
is the taking of cognizance that has driven the petitioner to this
Court in the subject petition.
5. The learned counsel Sri Neelendra D Gunde appearing for
the petitioner would vehemently contend that the car of the
petitioner was searched and the aforesaid amount of
Rs.11,36,500/- was found. It did not belong to the petitioner. A
claim is made by one Sri N.T. Venkatesh, bar owner who appears to
have a liaison with the driver of the petitioner for transportation. He
claimed it before the Court of law and the Court of law has allowed
the application and handed over entire money to the said Sri. N.T.
Venkatesh. Therefore, one fact is clear that the money did not
belong to the petitioner. He would submit that Section 7(a) of the
Act requires demand and acceptance for a work that is pending. In
the case at hand, there is neither demand nor acceptance. He
would, therefore, submit that proceedings be quashed by allowing
the subject petition.
6. Per-contra, the learned counsel Sri Anil Kale representing
the then ACB and now the Lokayukta would submit that the
petitioner's car was found in possession of Rs.11,36,500/-. Merely
because it is claimed by someone else and the claim has become
final, the petitioner cannot be absolved of the allegations. It is a
matter of evidence that demand and acceptance will have to be
proved. He would, therefore, contend that the petition be
dismissed.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. Before embarking upon consideration of facts obtaining in
the case at hand, I deem it appropriate to notice Section 7(a) and
its interpretation by the Apex Court from time to time. Section 7 of
the Act reads as follows:
"7. Offence relating to public servant being
bribed.--Any public servant who,--
(a) obtains or accepts or attempts to obtain from
any person, an undue advantage, with the
intention to perform or cause performance of
public duty improperly or dishonestly or to
forbear or cause forbearance to perform such
duty either by himself or by another public
servant; or
(b) obtains or accepts or attempts to obtain, an undue
advantage from any person as a reward for the
improper or dishonest performance of a public duty or
for forbearing to perform such duty either by himself
or another public servant; or
(c) performs or induces another public servant to perform
improperly or dishonestly a public duty or to forbear
performance of such duty in anticipation of or in
consequence of accepting an undue advantage from
any person,
shall be punishable with imprisonment for a term which shall
not be less than three years but which may extend to seven
years and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the
obtaining, accepting, or the attempting to obtain an undue
advantage shall itself constitute an offence even if the
performance of a public duty by public servant, is not or has
not been improper.
Illustration.--A public servant, 'S' asks a person, 'P' to
give him an amount of five thousand rupees to process his
routine ration card application on time. 'S' is guilty of an
offence under this section.
Explanation 2.--For the purpose of this section,--
(i) the expressions "obtains" or "accepts" or "attempts to
obtain" shall cover cases where a person being a
public servant, obtains or "accepts" or attempts to
obtain, any undue advantage for himself or for another
person, by abusing his position as a public servant or
by using his personal influence over another public
servant; or by any other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a
public servant obtains or accepts, or attempts to
obtain the undue advantage directly or through a third
party."
Section 7(a) directs that any person obtaining or accepting or
attempts to obtain from any person illegal gratification for
performance of a duty or its forbearance is said to be open for
punishment under Section 7. Section 7(a) is what is alleged
against the petitioner in the case at hand. Section 7(a) has been a
subject matter of interpretation qua the concept of demand and
acceptance in plethora of judgments of the Apex Court.
INTERPRETATION UNDER THE UN-AMENDED ACT:
9. The Apex Court in the case of B.JAYARAJ v. STATE OF
ANDHRA PRADESH1 interprets Section 7 of the Act and holds as
follows:
"7. Insofar as the offence under Section 7 is
concerned, it is a settled position in law that demand of
illegal gratification is sine qua non to constitute the said
offence and mere recovery of currency notes cannot
constitute the offence under Section 7 unless it is proved
beyond all reasonable doubt that the accused voluntarily
accepted the money knowing it to be a bribe. The above
position has been succinctly laid down in several judgments of
this Court. By way of illustration reference may be made to the
decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 :
(2013) 2 SCC (Cri) 89] and C.M. Girish
Babu v. CBI [(2009) 3 SCC 779: (2009) 2 SCC (Cri) 1]."
(Emphasis supplied)
(2014) 13 SCC 55
In the case of N.VIJAYAKUMAR v. STATE OF TAMILNADU2 the
Apex Court holds as follows:
"26. It is equally well settled that mere recovery by
itself cannot prove the charge of the prosecution against
the accused. Reference can be made to the judgments of
this Court in C.M. Girish Babu v. CBI [C.M. Girish
Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1]
and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of
A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] In the
aforesaid judgments of this Court while considering the
case under Sections 7, 13(1)(d)(i) and (ii) of the
Prevention of Corruption Act, 1988 it is reiterated that to
prove the charge, it has to be proved beyond reasonable doubt
that the accused voluntarily accepted money knowing it to be
bribe. Absence of proof of demand for illegal gratification and
mere possession or recovery of currency notes is not sufficient
to constitute such offence. In the said judgments it is also held
that even the presumption under Section 20 of the Act can be
drawn only after demand for and acceptance of illegal
gratification is proved. It is also fairly well settled that initial
presumption of innocence in the criminal jurisprudence gets
doubled by acquittal recorded by the trial court.
27. The relevant paras 7, 8 and 9 of the judgment
in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC
55 : (2014) 5 SCC (Cri) 543] read as under: (SCC pp. 58-
59)
"7. Insofar as the offence under Section 7
is concerned, it is a settled position in law that
demand of illegal gratification is sine qua non to
constitute the said offence and mere recovery of
currency notes cannot constitute the offence
under Section 7 unless it is proved beyond all
reasonable doubt that the accused voluntarily
accepted the money knowing it to be a bribe. The
above position has been succinctly laid down in
(2021) 3 SCC 687
several judgments of this Court. By way of
illustration, reference may be made to the
decision in C.M. Sharma v. State of A.P. [C.M.
Sharma v. State of A.P., (2010) 15 SCC 1 :
(2013) 2 SCC (Cri) 89] and C.M. Girish
Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3
SCC 779 : (2009) 2 SCC (Cri) 1] .
8. In the present case, the complainant did not
support the prosecution case insofar as demand by the
accused is concerned. The prosecution has not
examined any other witness, present at the time when
the money was allegedly handed over to the accused
by the complainant, to prove that the same was
pursuant to any demand made by the accused. When
the complainant himself had disowned what he had
stated in the initial complaint (Ext. P-11) before LW 9,
and there is no other evidence to prove that the
accused had made any demand, the evidence of PW 1
and the contents of Ext. P-11 cannot be relied upon to
come to the conclusion that the above material
furnishes proof of the demand allegedly made by the
accused. We are, therefore, inclined to hold that the
learned trial court as well as the High Court was not
correct in holding the demand alleged to be made by
the accused as proved. The only other material
available is the recovery of the tainted currency notes
from the possession of the accused. In fact such
possession is admitted by the accused himself. Mere
possession and recovery of the currency notes from
the accused without proof of demand will not bring
home the offence under Section 7. The above also will
be conclusive insofar as the offence under Sections
13(1)(d)(i) and (ii) is concerned as in the absence of
any proof of demand for illegal gratification, the use of
corrupt or illegal means or abuse of position as a
public servant to obtain any valuable thing or
pecuniary advantage cannot be held to be established.
9. Insofar as the presumption permissible to be
drawn under Section 20 of the Act is concerned, such
presumption can only be in respect of the offence
under Section 7 and not the offences under Sections
13(1)(d)(i) and (ii) of the Act. In any event, it is only
on proof of acceptance of illegal gratification that
presumption can be drawn under Section 20 of the Act
that such gratification was received for doing or
forbearing to do any official act. Proof of acceptance of
illegal gratification can follow only if there is proof of
demand. As the same is lacking in the present case
the primary facts on the basis of which the legal
presumption under Section 20 can be drawn are
wholly absent."
The abovesaid view taken by this Court fully supports the case
of the appellant. In view of the contradictions noticed by us
above in the depositions of key witnesses examined on behalf of
the prosecution, we are of the view that the demand for and
acceptance of bribe amount and cellphone by the appellant, is
not proved beyond reasonable doubt. Having regard to such
evidence on record the acquittal recorded by the trial court is a
"possible view" as such the judgment [State of T.N. v. N.
Vijayakumar, 2020 SCC OnLine Mad 7098] of the High Court is
fit to be set aside. Before recording conviction under the
provisions of the Prevention of Corruption Act, the courts have
to take utmost care in scanning the evidence. Once conviction is
recorded under the provisions of the Prevention of Corruption
Act, it casts a social stigma on the person in the society apart
from serious consequences on the service rendered. At the
same time it is also to be noted that whether the view taken by
the trial court is a possible view or not, there cannot be any
definite proposition and each case has to be judged on its own
merits, having regard to evidence on record."
(Emphasis supplied)
The Apex Court, later, in the case of K.SHANTHAMMA v. STATE
OF TELANGANA3 has held as follows:
"10. We have given careful consideration to the
submissions. We have perused the depositions of the
(2022) 4 SCC 574
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 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. [P.
Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 :
(2016) 1 SCC (Cri) 11] , this Court has summarised the well-
settled law on the subject in para 23 which reads thus : (SCC p.
159)
"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."
(emphasis supplied)
12. The prosecution's case is that the appellant had kept
pending the return of commercial tax filed by the said Society
for the year 1996-97. The appellant had issued a notice dated
14-2-2000 to the said Society calling upon the said Society to
produce the record. Accordingly, the necessary books were
produced by the said Society. The case made out by PW 1 is
that when he repeatedly visited the office of the appellant in
February 2020, the demand of Rs 3000 by way of illegal
gratification was made by the appellant for passing the
assessment order. However, PW 1, in his cross-examination,
accepted that the notice dated 26-2-2000 issued by the
appellant was received by the said Society on 15-3-2000 in
which it was mentioned that after verification of the books of
accounts of the said Society, exemption from payment of
commercial tax as claimed by the said Society was allowed. PW
1 accepted that it was stated in the said notice that there was
no necessity for the said Society to pay any commercial tax for
Assessment Year 1996-97.
13. According to the case of PW 1, on 23-3-2000, he
visited the appellant's office to request her to issue final
assessment order. According to his case, at that time, initially,
the appellant reiterated her demand of Rs 3000. But she scaled
it down to Rs 2000. Admittedly, on 15-3-2000, the said Society
was served with a notice informing the said Society that an
exemption has been granted from payment of commercial tax to
the said Society. Therefore, the said Society was not liable to
pay any tax for the year 1996-97. The issue of the final
assessment order was only a procedural formality. Therefore,
the prosecution's case about the demand of bribe made on 23-
3-2000 by the appellant appears to be highly doubtful.
14. PW 1 described how the trap was laid. In the pre-trap
mediator report, it has been recorded that LW 8, Shri R. Hari
Kishan, was to accompany PW 1 -- complainant at the time of
offering the bribe. PW 7 Shri P.V.S.S.P. Raju deposed that PW 8
Shri U.V.S. Raju, the Deputy Superintendent of Police, ACB, had
instructed LW 8 to accompany PW 1 -- complainant inside the
chamber of the appellant. PW 8 has accepted this fact by stating
in the examination-in-chief that LW 8 was asked to accompany
PW 1 and observe what transpires between the appellant and
PW 1. PW 8, in his evidence, accepted that only PW 1 entered
the chamber of the appellant and LW 8 waited outside the
chamber. Even PW 7 admitted in the cross-examination that
when PW 1 entered the appellant's chamber, LW 8 remained
outside in the corridor. Thus, LW 8 was supposed to be an
independent witness accompanying PW 1. In breach of the
directions issued to him by PW 8, he did not accompany PW 1
inside the chamber of the appellant, and he waited outside the
chamber in the corridor. The prosecution offered no explanation
why LW 8 did not accompany PW 1 inside the chamber of the
appellant at the time of the trap.
15. Therefore, PW 1 is the only witness to the alleged
demand and acceptance. According to PW 1, firstly, the demand
was made of Rs 3000 by the appellant on 24-2-2000.
Thereafter, continuously for three days, she reiterated the
demand when he visited the appellant's office. Lastly, the
appellant made the demand on 29-2-2000 and 23-3-2000. On
this aspect, he was cross-examined in detail by the learned
Senior Counsel appearing for the appellant. His version about
the demand and acceptance is relevant which reads thus:
"In the vicinity of office of AO the jeep, in which
we went there was stopped and I was asked to go into
the office of AO and the trap party took vantage
positions. Accordingly, I went inside the office of AO. I
wished AO. At that time apart from AO some other
person was found in the office room of AO and he was
talking to the AO. AO offered me a chair. After
discussion with the AO the said other person left the
room of AO. I informed AO that I brought the bribe
amount as demanded by her and also asked her to issue
the final assessment orders. Then I took the said tainted
currency notes from my shirt pocket and I was about to
give the same to the AO and on which instead of taking
the same amount directly by her with her hands she
took out a diary from her table drawer, opened the diary
and asked me to keep the said amount in the diary.
Accordingly, I kept the amount in the said diary. She
closed the said diary and again kept the same in her
table drawer and locked the drawer and kept the keys in
her hand bag which was hanging to her seat. She
pressed the calling bell and a lady attender came into
the room of AO, then she instructed the lady attender to
call ACTO concerned to her along with the society
records concerned.
Accordingly, ACTO came to AO along with record. After going
through the ledger and cash book, etc. AO signed on the last
page of the said ledger and cash book mentioning 26-2-2000
below her signature in the said register though she signed on
27-3-2000 in my presence. AO directed her attender to affix
official rubber stamp below her signature in the ledger and cash
book and accordingly attender affixed the same. AO also signed
on the office note of final assessment orders at that time.
Thereafter, I collected the general ledger and cash book from
the attender after affixing the said rubber stamp thereon and
came out of the office of AO and relayed the pre-arranged signal
to the trap party."
(emphasis supplied)
16. Thus, PW 1 did not state that the appellant reiterated
her demand at the time of trap. His version is that on his own,
he told her that he had brought the amount. What is material is
the cross-examination on this aspect. In the cross-examination,
PW 1 accepted that his version regarding the demand made by
the appellant on various dates was an improvement. The
relevant part of the cross-examination of the appellant reads
thus:
"I did not state to ACB Inspector in Section 161
CrPC statement that on the evening of 24-2-2000 I met
the AO and that she demanded the bribe. I did not
mention in Ext. P-3 complaint that continuously for 3
days after 24-2-2000 I met the AO and the AO reiterated
her demand. I did not mention in Ext. P-3 complaint that
on 29-2-2000 I approached the AO and the AO demanded
bribe of Rs 3000 and that unless I pay the said bribe
amount she will not issue final assessment orders. I did
not state in my Section 164 statement before the
Magistrate that 13-3-2000 to 16-3-2000 I was on leave
and from 1-3-2000 to 12-3-2000, I was engaged in
recovering the dues of the society. It is not true to
suggest that I did not meet the AO continuously 3 days
i.e. on 25-2-2000, 26-2-2000 and 27-2-2000 and that
27-2-2000 is Sunday. It is not true to suggest that I did
not meet the AO in the evening of 24-2-2000 and that AO
did not demand any money from me. I did not state in
my Section 161 CrPC statement to Inspector of ACB that
before I left the office of DSP on the date of trap I made a
phone call enquiring about the availability of AO and the
AO was in the office and informed me that she should be
available in the office from 6.00 to 7.00 p.m. on that day
so also in my Section 164 CrPC. I made such a phone call
from the office of the DSP, ACB. I do not remember as to
from which phone number I made phone call on that day.
I cannot describe office telephone number of the AO. It is
not true to suggest that I did not make any such phone
call to AO and that she did not give any such reply to
me. I did not state to ACB Inspector in my Section 161
CrPC statement or to the Magistrate in my Section 164
CrPC statement that I went inside the office of AO and I
wished AO and at that time apart from AO some other
person was found in the office room of AO and that he
was talking to the AO and that the AO offered me a chair
and that after discussion with the AO the said person left
the room of AO and then I informed the AO that I brought
the bribe amount. I did not state that said aspects to DSP
during the post trap proceedings also."
(emphasis supplied)
17. Thus, the version of PW 1 in his examination-in-chief
about the demand made by the appellant from time to time is
an improvement. As stated earlier, LW 8 did not enter the
appellant's chamber at the time of trap. There is no other
evidence of the alleged demand. Thus, the evidence of PW 1
about the demand for bribe by the appellant is not at all
reliable. Hence, we conclude that the demand made by the
appellant has not been conclusively proved.
18. PW 2, Shri B.D.V. Ramakrishna had no personal
knowledge about the demand. However, he accepted that on
15-3-2000, the said Society received a communication
informing that the said Society need not pay any tax for the
year 1996-97. PW 3 Shri L. Madhusudhan was working as
Godown Incharge with the said Society. He stated that on 15-3-
2000, when he visited the appellant's office, ACTO served the
original notice dated 26-2-2000 in which it was mentioned that
the Society was not liable to pay any tax. It is his version that
when he met the appellant on the same day, she enquired
whether he had brought the demanded amount of Rs 3000.
However, PW 3 did not state that the appellant demanded the
said amount for granting any favour to the said society.
19. PW 4 Ahmed Moinuddin was ACTO at the relevant
time. He deposed that on 27-3-2000, the appellant instructed
him to prepare the final assessment order, which was kept
ready in the morning. He stated that he was called at 6 p.m. to
the chamber of the appellant along with books of the said
Society. At that time, PW 1 was sitting there. He stated that the
appellant subscribed her signature on a Register of the said
Society and put the date as 26-2-2000 below it. He was not a
witness to the alleged demand. However, in the cross-
examination, he admitted that the appellant had served a memo
dated 21-3-2000 to him alleging that he was careless in
performing his duties."
The afore-quoted judgments were rendered interpreting Section 7
as it stood prior to amendment. The Apex Court holds that demand
and acceptance are sine qua non for an offence under Section 7 of
the Act.
JUDGMENTS POST AMENDMENT:
10. The Apex Court has further interpreted Section 7(a) post
amendment in the case of NEERAJ DUTTA v. STATE (GOVT. OF
N.C.T. OF DELHI4 and holds as follows:
"8. Before we analyze the evidence, we must note that
we are dealing with Sections 7 and 13 of the PC Act as they
stood prior to the amendment made by the Act 16 of 2018 with
effect from 26th July 2018. We are referring to Sections 7 and 13
as they stood on the date of commission of the offence. Section
7, as existed at the relevant time, reads thus:
"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
2023 SCC OnLine SC 280
doing or forbearing to do any official act or for
showing or forbearing to show, in the exercise of his
official functions, favour or disfavour 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 three years
but which may extend to seven years and shall also be
liable to fine.
Explanations.-
(a) "Expecting to be a public servant"- If a person
not expecting to be in office obtains a
gratification by deceiving others into a belief
that he is about to be in office, and that he will
then serve them, he may be guilty of cheating,
but he is not guilty of the offence defined in this
section.
(b) "Gratification". The word "gratification" is not
restricted to pecuniary gratifications or to
gratifications estimable in money.
(c) "Legal remuneration"- The words "legal
remuneration" are not restricted to
remuneration which a public servant can
lawfully demand, but include all remuneration
which he is permitted by the Government or the
organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who
receives a gratification as a motive or reward
for doing what he does not intend or is not in a
position to do, or has not done, comes within
this expression.
(e) Where a public servant induces a person
erroneously to believe that his influence with
the Government has obtained a title for that
person and thus induces that person to give the
public servant, money or any other gratification
as a reward for this service, the public servant
has committed an offence under this section."
9. Section 13(1)(d), as existed at the relevant time,
reads thus:
"13. Criminal misconduct by a public
servant.--
(1) A public servant is said to commit the offence of
criminal misconduct,-
(a) ....................................
(b) ....................................
(c) ....................................
(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) ........................................"
10. The demand for gratification and the acceptance
thereof are sine qua non for the offence punishable under
Section 7 of the PC Act.
11. The Constitution Bench4 was called upon to decide
the question which we have quoted earlier. In paragraph 74, the
conclusions of the Constitution have been summarised, which
read thus:
"74. What emerges from the aforesaid discussion is
summarised as under:
(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.
(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.
(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.
(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 Section
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 Section 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 Section
13(1)(d) and (i) and (ii) of the Act.
(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.
(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.
(g) In so far 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 Section 13(1)(d)(i) and (ii) of the
Act.
(h) We clarify that the presumption in law under
Section 20 of the Act is distinct from presumption
of fact referred to above in point
(e) as the former is a mandatory presumption while
the latter is discretionary in nature."
(emphasis added)
12. The referred question was answered in paragraph 76
of the aforesaid judgment, which reads thus:
"76. Accordingly, the question referred for
consideration of this Constitution Bench is answered as
under:
In the absence of evidence of the
complainant (direct/primary, oral/ document-tary
evidence), it is permissible to draw an inferential
deduction of culpability/guilt of a public servant
under Section 7 and Section 13(1)(d) read with
Section 13(2) of the Act based on other evidence
adduced by the prosecution."
(emphasis added)
13. Even the issue of presumption under Section 20 of
the PC Act has been answered by the Constitution Bench by
holding that only on proof of the facts in issue, Section 20
mandates the Court to raise a presumption that illegal
gratification was for the purpose of motive or reward as
mentioned in Section 7 (as it existed prior to the amendment of
2018). In fact, the Constitution Bench has approved two
decisions by the benches of three Hon'ble Judges in the cases
of B. Jayaraj1 and P. Satyanarayana Murthy2. There is another
decision of a three Judges' bench in the case of N.
Vijayakumar v. State of Tamil Nadu5, which follows the view
taken in the cases of B. Jayaraj1 and P. Satyanarayana Murthy2.
In paragraph 9 of the decision in the case of B. Jayaraj1, this
Court has dealt with the presumption under Section 20 of the PC
Act. In paragraph 9, this Court held thus:
"9. Insofar as the presumption permissible
to be drawn under Section 20 of the Act is
concerned, such presumption can only be in
respect of the offence under Section 7 and not the
offences under Sections 13(1)(d)(i) and (ii) of the
Act. In any event, it is only on proof of acceptance
of illegal gratification that presumption can be
drawn under Section 20 of the Act that such
gratification was received for doing or forbearing
to do any official act. Proof of acceptance of illegal
gratification can follow only if there is proof of demand.
As the same is lacking in the present case the primary
facts on the basis of which the legal presumption under
Section 20 can be drawn are wholly absent."
(emphasis added)
14. The presumption under Section 20 can be invoked
only when the two basic facts required to be proved under
Section 7, are proved. The said two basic facts are 'demand' and
'acceptance' of gratification. The presumption under Section 20
is that unless the contrary is proved, the acceptance of
gratification shall be presumed to be for a motive or reward, as
contemplated by Section 7. It means that once the basic facts of
the demand of illegal gratification and acceptance thereof are
proved, unless the contrary are proved, the Court will have to
presume that the gratification was demanded and accepted as a
motive or reward as contemplated by Section 7. However, this
presumption is rebuttable. Even on the basis of the
preponderance of probability, the accused can rebut the
presumption.
15. In the case of N. Vijayakumar5, another bench of
three Hon'ble Judges dealt with the issue of presumption under
Section 20 and the degree of proof required to establish the
offences punishable under Section 7 and clauses (i) and (ii)
Section 13(1)(d) read with Section 13(2) of PC Act. In
paragraph 26, the bench held thus:
"26. It is equally well settled that mere recovery
by itself cannot prove the charge of the prosecution
against the accused. Reference can be made to the
judgments of this Court in C.M. Girish Babu v. CBI [C.M.
Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC
(Cri) 1] and in B. Jayaraj v. State of A.P. [B.
Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5
SCC (Cri) 543] In the aforesaid judgments of this
Court while considering the case under
Sections 7, 13(1) (d)(i) and (ii) of the Prevention
of Corruption Act, 1988 it is reiterated that to
prove the charge, it has to be proved beyond
reasonable doubt that the accused voluntarily
accepted money knowing it to be bribe. Absence of
proof of demand for illegal gratification and mere
possession or recovery of currency notes is not
sufficient to constitute such offence. In the said
judgments it is also held that even the presumption
under Section 20 of the Act can be drawn only after
demand for and acceptance of illegal gratification is
proved. It is also fairly well settled that initial
presumption of innocence in the criminal jurisprudence
gets doubled by acquittal recorded by the trial court."
(emphasis added)
16. Thus, the demand for gratification and its acceptance
must be proved beyond a reasonable doubt.
17. Section 7, as existed prior to 26th July 2018, was
different from the present Section 7. The unamended Section 7
which is applicable in the present case, specifically refers to
"any gratification". The substituted Section 7 does not use the
word "gratification", but it uses a wider term "undue
advantage". When the allegation is of demand of gratification
and acceptance thereof by the accused, it must be as a motive
or reward for doing or forbearing to do any official act. The fact
that the demand and acceptance of gratification were for motive
or reward as provided in Section 7 can be proved by invoking
the presumption under Section 20 provided the basic allegations
of the demand and acceptance are proved. In this case, we are
also concerned with the offence punishable under clauses (i)
and (ii) Section 13(1)(d) which is punishable under Section
13(2) of the PC Act. Clause (d) of sub-section (1) of Section 13,
which existed on the statute book prior to the amendment of
26th July 2018, has been quoted earlier. On a plain reading of
clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof
of acceptance of illegal gratification will be necessary to prove
the offences under clauses (i) and (ii) of Section 13(1)(d). In
view of what is laid down by the Constitution Bench, in a given
case, the demand and acceptance of illegal gratification by a
public servant can be proved by circumstantial evidence in the
absence of direct oral or documentary evidence. While
answering the referred question, the Constitution Bench has
observed that it is permissible to draw an inferential deduction
of culpability and/or guilt of the public servant for the offences
punishable under Sections 7 and 13(1)(d) read with Section
13(2) of the PC Act. The conclusion is that in absence of direct
evidence, the demand and/or acceptance can always be proved
by other evidence such as circumstantial evidence.
18. The allegation of demand of gratification and
acceptance made by a public servant has to be established
beyond a reasonable doubt. The decision of the Constitution
Bench does not dilute this elementary requirement of proof
beyond a reasonable doubt. The Constitution Bench was dealing
with the issue of the modes by which the demand can be
proved. The Constitution Bench has laid down that the proof
need not be only by direct oral or documentary evidence, but it
can be by way of other evidence including circumstantial
evidence. When reliance is placed on circumstantial evidence to
prove the demand for gratification, the prosecution must
establish each and every circumstance from which the
prosecution wants the Court to draw a conclusion of guilt. The
facts so established must be consistent with only one hypothesis
that there was a demand made for gratification by the accused.
Therefore, in this case, we will have to examine whether there is
any direct evidence of demand. If we come to a conclusion that
there is no direct evidence of demand, this Court will have to
consider whether there is any circumstantial evidence to prove
the demand."
Subsequent to NEERAJ DUTTA'S case the Apex Court in the case
of SOUNDARAJAN v. STATE5 has held as follows:
"FINDING ON PROOF OF DEMAND
9. We have considered the submissions. It is well settled
that for establishing the commission of an offence punishable
under Section 7 of the PC Act, proof of demand of gratification
and acceptance of the gratification is a sine qua non. Moreover,
the Constitution Bench in the case of Neeraj Dutta3 has
reiterated that the presumption under Section 20 of the PC
Act can be invoked only on proof of facts in issue, namely, the
demand of gratification by the accused and the acceptance
thereof.
10. As stated earlier, complainant PW-2 has not
supported the prosecution. He has not said anything in his
examination-in-chief about the demand made by the appellant.
The public prosecutor cross-examined PW-2. The witness stated
that there was no demand of a bribe made by the appellant.
According to him, he filed a complaint as the return of the sale
deed was delayed. Though PW-2 accepted that he had filed the
complaint, in the cross-examination, he was not confronted with
the material portions of the complaint in which he had narrated
how the alleged demand was made. The public prosecutor ought
to have confronted the witness with his alleged prior statements
in the complaint and proved that part of the complaint through
the concerned police officer who had reduced the complaint into
writing. However, that was not done.
11. Now, we turn to the evidence of the shadow witness
(PW-3). In the examination-in-chief, he stated that the
(2023) SCC OnLine SC 424
appellant asked the PW-2 whether he had brought the amount.
PW-3 did not say that the appellant made a specific demand of
gratification in his presence to PW-2. To attract Section 7 of
the PC Act, the demand for gratification has to be proved by the
prosecution beyond a reasonable doubt. The word used in
Section 7, as it existed before 26th July 2018, is 'gratification'.
There has to be a demand for gratification. It is not a simple
demand for money, but it has to be a demand for gratification.
If the factum of demand of gratification and acceptance thereof
is proved, then the presumption under Section 20 can be
invoked, and the Court can presume that the demand must be
as a motive or reward for doing any official act. This
presumption can be rebutted by the accused.
12. There is no circumstantial evidence of demand for
gratification in this case. In the circumstances, the offences
punishable under Section 7 and Section 13(2) read with Section
13(1)(d) have not been established. Unless both demand and
acceptance are established, offence of obtaining pecuniary
advantage by corrupt means covered by clauses (i) and (ii) of
Section 13(1)(d) cannot be proved."
The Apex Court in the case of NEERAJ DUTTA (supra) was
clarifying and interpreting the judgment in the case of NEERAJ
DUTTA which was rendered by a Constitution Bench and further
holds that proof of demand and acceptance of gratification is sine
qua non for any allegation under Section 7 of the Act, be it pre-
amendment or post-amendment. This is reiterated in the case of
SOUNDARAJAN (supra).
11. On a coalesce of the judgments rendered by the Apex
Court what would unmistakably emerge is that; if there is demand
and no acceptance, offence under Section 7 cannot be laid; if there
is acceptance and no demand, even then it would not become an
offence. Whether both demand and acceptance are present in the
case at hand where it cannot be a work to be done is another facet
of Section 7(a) of the Act which the Apex Court has considered.
On the bedrock of the principles laid down by the Apex Court in the
aforesaid judgments, if the case at hand is noticed, it would become
unmistakably clear that it falls foul of the principles so laid down.
12. The petitioner is not caught demanding or accepting
bribe. The boot of the Government vehicle given to the petitioner
when it was being driven by the driver did contain cash of
Rs.11,36,500/-. It is attributed to the petitioner at the time when
the crime is registered. The attribution is demolished when claimant
of the cash one Sri N.T.Venkatesh files an application before the
learned Sessions Judge and the learned Sessions Judge on
19-12-2019 allows the said application on the reasons set out in the
said application and directs handing over of the seized amount to
Sri N.T.Venkatesh. The release intimation by the concerned Court
reads as follows:
"To,
The PSI / SHO
A.C.B
Ballari.
RELEASE INTIMATION
You are hereby directed to released the currency notes to
the tune of Rs.11,35,000-00 which is seize in Crime No.16/2019
of ACB Ballari and reported the seizer before the Honourable
under P.F.No.56/2019 dated 20-07-2019 of your P.S. to the
petitioner N.T.Venkatesh S/o Late Thimmaiah, Age: 60 years,
Hindu, R/o Venkateshwara Nilaya, Krishna, Krishna Nagar, 1st
Cross, SIT Extension Town Tumakar, Tumkar Taluk and District,
after taking photograph of the currency notes and I.O. is
directed to prepare detailed mahazar while handing over the
property i.e., is currency notes.
Sd/-
3rd Addl.Dist & Sessions Judge,
Hosapete."
(Sic)
The Court directs the ACB to release the amount in favour of
the aforesaid N.T.Venkatesh. The ACB then releases the amount
and files a memo of compliance before the concerned Court. It
reads as follows:
"¤ªÉÃzÀ£É:-
ªÀiÁ£Àå WÀ£À 3£Éà «±ÉõÀ f¯Áè ªÀÄvÀÄÛ ¸ÀvÀæ £ÁåAiÀiÁ®AiÀÄ, §¼Áîj [ºÉƸÀ¥ÉÃmÉ ¦ÃoÀ] gÀªÀgÀ ¸À¤ß¢üUÉ
«µÀAiÀÄ:- ªÀiÁ£ÀågÀ DzÉñÀPÉÌ ¥Á®£Á ªÀgÀ¢AiÀÄ£ÀÄß ¸À°è¹PÉÆAqÀÀ §UÉÎ.
G¯ÉèÃR:- 1] ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀ ¸ÀA: r±ï £ÀA: 3565/2019 ¢£ÁAPÀ:
26/12/2019.
2] J.¹.©., ¥Éưøï oÁuÉ, §¼Áîj, UÀÄ£Éß £ÀA: 16/2019 PÀ®A 7(J)
®AZÀ
¥Àæw§AzsÀPÀ PÁAiÉÄÝ 1988 ¢: 20/07/2019.
********
ªÉÄîÌAqÀ «µÀAiÀÄ ºÁUÀÄ G¯ÉèÃRUÀ½UÉ ¸ÀA¨sÀA¢¹zÀAvÉ WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ°è
¤ªÉâ¹PÉƼÀÄîªÀÅzÉãÉAzÀgÉ, G¯ÉèÃR-2gÀ ¥ÀæPÀgÀtzÀ°è D¥Á¢vÀ J¯ï.J£ï.ªÉÆúÀ£À PÀĪÀiÁgï
gÀªÀjAzÀ d¥ÀÄÛ¥Àr¹PÉÆArzÀÝ £ÀUÀzÀÄ ºÀt gÀÆ.1136500/- gÀÆUÀ¼À°è, 113500/- gÀÆUÀ¼À£ÀÄß ²æÃ
J£ï.n.ªÉAPÀmÉñÀ vÀAzÉ ¯ÉÃmï wªÀÄäAiÀÄå, ªÀ:60 ªÀµÀð, ªÁ¸À: ªÉAPÀmÉñÀégÀ ¤®AiÀÄ, 1£Éà CqÀØ
gÀ¸ÉÛ, PÀȵÁÚ £ÀUÀgÀ, J¸ï.L.n. §qÁªÀuÉ, vÀĪÀÄPÀÆgÀÄ. gÀªÀgÀ ªÀ±ÀPÉÌ ©qÀÄUÀqÉ ªÀiÁqÀ®Ä ªÀiÁ£Àå
£ÁåAiÀiÁ®AiÀĪÀÅ G¯ÉèÃR-1 gÀAvÉ DzÉñÀ ªÀiÁrzÀÄÝ EgÀÄvÀÛzÉ.
¸ÀzÀj £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀzÀ ªÉÄÃgÉUÉ ¢£ÁAPÀ: 20/01/2020 gÀAzÀÄ ²æÃ
J£ï.n.ªÉAPÀmÉñÀ vÀAzÉ ¯ÉÃmï wªÀÄäAiÀÄå, ªÀ: 60 ªÀµÀð ªÁ¸À: ªÉAPÀmÉñÀégÀ ¤®AiÀÄ, 1£Éà CqÀØ
gÀ¸ÉÛ, PÀȵÁÚ £ÀUÀgÀ, J¸ï.L.n. §qÁªÀuÉ, vÀĪÀÄPÀÆgÀÄ. gÀªÀgÀÄ PÀbÉÃjUÉ ºÁdgÁV ºÀt ©qÀÄUÀqÉUÉ
PÉÆÃj vÀªÀÄä «¼Á¸À zsÀÈrÃPÀj¸ÀĪÀ §UÉÎ UÀÄgÀÄw£À aÃnUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹zÀÝjAzÀ CªÀjUÉ
ºÀtªÀ£ÀÄß ©qÀÄUÀqÉ ªÀiÁr £ÁåAiÀiÁ®AiÀÄzÀ DzÉñÀzÀAvÉ ºÀt ©qÀÄUÀqÉAiÀÄ §UÉÎ «ªÀgÀªÁzÀ
¥ÀAZÀ£ÁªÉÄAiÀÄ£ÀÄß vÀAiÀiÁj¹, ¨sÁªÀavÀæUÀ¼À£ÀÄß ªÀiÁr¹, £ÀUÀzÀÄ ºÀt gÀÆ 1135000/-UÀ¼À£ÀÄß ²æÃ
J£ï.n.ªÉAPÀmÉñÀ gÀªÀgÀ ªÀ±ÀPÉÌ M¦à¹gÀÄvÉÛãÉ.
ªÀiÁ£ÀågÀ DzÉñÀPÉÌ ¥Á®£Á ªÀgÀ¢AiÀÄ£ÀÄß ¸À°è¹PÉƼÀÄîvÁÛ EzÀgÉÆA¢UÉ ºÀtªÀ£ÄÀ ß
¹éÃPÀj¹zÀ §UÉÎ ¹éÃPÀÈw ¸À» ªÀiÁrzÀ DzÉñÀzÀ ¥Àæw ªÀÄvÀÄÛ ºÀÀt ©qÀÄUÀqÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è
ªÀiÁrzÀ ¥ÀAZÀ£ÁªÉÄAiÀÄ£ÀÄß ®UÀwÛ¹ ¤ªÉâ¹PÉÆArgÀÄvÉÛãÉ.
¸À»/-
¥Éưøï G¥À C¢ÃPÀëPÀgÀÄ,
¨sÀæµÁÖZÁgÀ ¤UÀæºÀ zÀ¼À,
§¼Áîj."
(Sic)
The ACB hands over the said amount to Sri N.T. Venkatesh on
20.01.2020. The aforesaid proceedings have become final as it has
become final, as it is implemented by the ACB. If Sri N.T.
Venkatesh has claimed the amount found in the boot and the
petitioner is neither caught demanding nor accepting bribe and no
work is even projected to be pending with the petitioner, Section
7(a) of the Act can hardly be laid against the petitioner. Therefore,
the very act of the ACB in filing the charge sheet against the
petitioner under Section 7(a) of the Act would not stand to reason.
If further proceedings are permitted to continue, it would become
an abuse of the process of law and result in miscarriage of justice.
13. For the aforesaid reasons, I pass the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The order dated 30-04-2022 passed by the III
Additional District and Sessions Judge & Special
Judge (P.C. Act), Ballari in Special Case No.5003 of
2021 taking cognizance for offence punishable under
Section 7(a) of the Prevention of Corruption Act,
1988 and all further proceedings taken thereto
against the petitioner stand quashed.
Sd/-
JUDGE
Bkp
CT:SS
