11. The learned Judge in the High Court seems to
have mechanically affixed his approval to the
findings recorded by the trial Judge by profusely
extracting such findings. Mere recovery of the
currency note of Rs 20 denomination, and that too
lying on the pad on the table, by itself cannot be
held to be proper or sufficient proof of the
acceptance of the bribe, in the peculiar
circumstances of this case which lend also credence
to the case of the appellant that it fell on the table
in the process of the appellant pushing it away with
her hands when attempted to be thrust into her
hands by PW 1. The results of phenolphthalein test,
viewed in the context that the appellant could have
also come into contact with the currency note when
she pushed it away with her hands cannot by itself
be considered to be of any relevance to prove that
the appellant really accepted the bribe amount.
With such perfunctory nature of materials and the
prevaricating type of evidence of PW 1 and PW 3,
who seem to have a strong prejudice against the
appellant, it would be not only unsafe but
dangerous to rest conviction upon their testimony.
PW 1, if really was keen on getting the copy of the
record urgently, could have made an urgent
application to have them delivered within 3 days
instead of making an ordinary application and
going on such an errand, which makes it even
reasonable to assume that the trio of PW 1, PW 3
and Jagdish Bokade were attempting to weave a
web around the appellant to somehow get her into
trouble and victimise her.
II. P. Satyanarayana Murthy v. District
Inspector of Police, State of Andhra Pradesh
and another, State of Andhra Pradesh and
another, (2015) 10 Supreme Court Cases 152
25. In our estimate, to hold on the basis of the
evidence on record that the culpability of the
appellant under Sections 7 and 13(1)(d)(i) and (ii)
has been proved, would be an inferential deduction
which is impermissible in law. Noticeably, the High
Court had acquitted the appellant of the charge
under Section 7 of the Act and the State had
accepted the verdict and has not preferred any
appeal against the same. The analysis undertaken
as hereinabove qua Sections 7 and 13(1)(d)(i) and
26. In reiteration of the golden principle which runs
through the web of administration of justice in
criminal cases, this Court in Sujit Biswas v. State of
Assam [(2013) 12 SCC 406 : (2014) 1 SCC (Cri)
677] had held that suspicion, however grave,
cannot take the place of proof and the prosecution
cannot afford to rest its case in the realm of "may
be" true but has to upgrade it in the domain of
"must be" true in order to steer clear of any
possible surmise or conjecture. It was held, that
the court must ensure that miscarriage of justice is
avoided and if in the facts and circumstances, two
views are plausible, then the benefit of doubt must
be given to the accused.
27. The materials on record when judged on the
touchstone of the legal principles adumbrated
hereinabove, leave no manner of doubt that the
prosecution, in the instant case, has failed to prove
unequivocally, the demand of illegal gratification
and, thus, we are constrained to hold that it would
be wholly unsafe to sustain the conviction of the
appellant under Sections 13(1)(d)(i) and (ii) read
with Section 13(2) of the Act as well. In the result,
the appeal succeeds. The impugned judgment and
order [P. Satyanarayana v. State of A.P., Criminal
Appeal No. 262 of 2002, order dated 25-4-2008
(AP)] of the High Court is hereby set aside. The
appellant is on bail. His bail bond stands
discharged. Original record be sent back
immediately.
"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. [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] ."
37. In P. Satyanarayana Murthy [P. Satyanarayana
Murthy v. State of A.P., (2015) 10 SCC 152 :
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
the 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."
IV. Panalal Damoda Rathi v. State
8. There could be no doubt that the evidence of the
complainant should be corroborated in material
particulars. After introduction of Section 165-A of
the Penal Code, 1860 making the person who
offers bribe guilty of abetment of bribery, the
complainant cannot be placed on any better footing
than that of an accomplice and corroboration in
material particulars connecting the accused with
the crime has to be insisted upon. It has to be
borne in mind that the marked notes were
recovered from the possession of the second
accused and not the appellant. It is the case of the
prosecution that the marked notes were paid to the
second accused for the purpose of being handed
over to the appellant. The evidence of the
complainant regarding the conversation between
him and the accused has been set out earlier. As
the entire case of the prosecution depends upon
the acceptance of the evidence relating to the
conversation between the complainant and the
appellant during which the appellant demanded the
money and directed payment to the second
accused which was accepted by the complainant,
we will have to see whether this part of the
evidence of complainant has been corroborated.
The prosecution relies on the testimony of PW 3,
the panch witness, as corroborating the evidence of
the complainant on this aspect. It may be
reiterated that according to the complainant when
he asked the appellant to relieve him from the case
and to see that he was given a lesser sentence, the
appellant asked him if he had brought the money
and the complainant told him that he had and the
appellant asked the complainant to pay the money
to Dalvi, the second accused, and asked the second
accused to receive the money from the
complainant. On this aspect the evidence of PW 3
is as follows:
and State of M.P. v. Dal Singh [(2013) 14 SCC 159
: AIR 2013 SC 2059] .)
11. The law on the issue is well settled that
demand of illegal gratification is sine qua non for
constituting an offence under the 1988 Act. Mere
recovery of tainted money is not sufficient to
convict the accused when substantive evidence in
the case is not reliable, unless there is evidence to
prove payment of bribe or to show that the money
was taken voluntarily as a bribe. Mere receipt of
the amount by the accused is not sufficient to
fasten guilt, in the absence of any evidence with
regard to demand and acceptance of the amount as
illegal gratification. Hence, the burden rests on the
accused to displace the statutory presumption
raised under Section 20 of the 1988 Act, by
bringing on record evidence, either direct or
circumstantial, to establish with reasonable
probability, that the money was accepted by him,
other than as a motive or reward as referred to in
Section 7 of the 1988 Act. While invoking the
provisions of Section 20 of the Act, the court is
required to consider the explanation offered by the
accused, if any, only on the touchstone of
preponderance of probability and not on the
touchstone of proof beyond all reasonable doubt.
However, before the accused is called upon to
explain how the amount in question was found in
his possession, the foundational facts must be
established by the prosecution. The complainant is
an interested and partisan witness concerned with
the success of the trap and his evidence must be
tested in the same way as that of any other
interested witness. In a proper case, the court may
look for independent corroboration before
convicting the accused person. (Vide Ram Prakash
Arora v. State of Punjab [(1972) 3 SCC 652 : 1972
SCC (Cri) 696 : AIR 1973 SC 498] , T.
Subramanian v. State of T.N. [(2006) 1 SCC 401 :
This evidence clearly shows that the file of Jagdish
Raj had been transferred to Sharma and the
appellant was aware of it and he informed Jagdish
Raj accordingly in so many terms. The importance
of this evidence cannot be over-exaggerated,
particularly since Sharma was a witness examined
on behalf of the prosecution and this incident was
narrated by him in his examination-in-chief. It
cannot lie in the mouth of the prosecution to
disown this evidence given by Sharma. If this
evidence is true, as it must be taken to be -- and it
must be said in fairness to the Counsel on behalf of
the State that nothing was urged against it -- it is
impossible to accept the prosecution story that the
appellant demanded bribe of Rs 400 for Brar or Rs
50 for himself or that Jagdish Raj agreed to pay the
same. This evidence, in our opinion, completely
destroys the foundation of the prosecution case
and knocks the bottom out of it. This evidence also
falsifies the statement of Jagdish Raj that he did
not see the appellant in the morning of July 31,
1968 and it was only at 1.30 p.m. that with the
raiding party he went for the first time on that day
to the office of the appellant, Jagdish Raj is
completely belied by this evidence on an important
part of the prosecution case.
8. The prosecution case also suffers from
another serious infirmity and it is that it rests
entirely on the evidence of witnesses who are
either interested witnesses or police witnesses.
Jagdish Raj was clearly an interested witness
because he was concerned in laying the trap for the
appellant. Arjun Das was also an interested witness
as he was a relative of Jagdish Raj. Jagdish Raj
admitted in his evidence that Arjun Das was his
relative and so did Arjun Das. It is a little
interesting to know that Arjun Das was not secured
as a witness to the raid by Inspector Hardas Singh.
He was picked up by Jagdish Raj when he was
going to meet his sister in Putlighar and taken to
the Special Enquiry Agency. His evidence was that
he had taken leave on that day from his work as he
wanted to meet his sister. But curiously enough, he
allowed himself to be persuaded to go as a witness
of the raid and even after the raid was over at
about 3 p.m. he did not go to meet his sister in
Putlighar. It appears to us extremely improbable
that Arjun Das was really going to meet his sister
when he was diverted by Jagdish Raj and taken as
a member of the raiding party. If that was the
mission for which he had taken leave, he would not
have gone with Jagdish Raj and even if he did, he
would have gone to meet his sister after the raid
was over. It seems to us that Arjun Das had taken
leave for the purpose of assisting Jagdish Raj in
arranging the raid and he was clearly and
indubitably an interested witness. Now it is
significant that the only two persons who witnessed
the actual passing of bribe were Jagdish Raj and
Arjun Das. Inspector Hardas Singh knew very well
that Arjun Das was brought by Jagdish Raj, and
presumably, he was connected with Jagdish Raj
and could not, therefore, be regarded as an
independent person, even so he did not care to
secure an independent person, to act as a witness
of the raid. In fact, one Mohan Lal had acted as a
witness when Jagdish Raj gave information to
Inspector Hardas Singh in regard to the demand
for bribe made by the appellant and though he was
an independent person, he was not taken as a
witness by Inspector Hardas Singh when the latter
went for the purpose of the raid. Instead, one
Makhan, who was a sweeper in the whole-time
employment of the police, was taken as a witness.
But, even he was not sent along, with Jagdish Raj
to witness the passing of the bribe. It is indeed
difficult to see how Makhan could possibly be
regarded as an independent witness. It is indeed a
sad commentary on the functioning of the anti-
corruption department in this case that the only
safeguard against false implication in the offence of
bribery, which is provided by the presence of
independent and respectable witnesses, was
completely ignored and two witnesses were taken,
one of whom was a relative of Jagdish Raj and the
other, a sweeper in the whole-time employment of
the police. We must take this opportunity of
impressing on the officers functioning in the anti-
corruption department to insist on observing this
safeguard as zealously and scrupulously as possible
for the protection of public servants against whom
a trap may have to be laid. They must seriously
endeavour to secure really independent and
respectable witnesses so that the evidence in
regard to raid inspires confidence in the mind of
the court and the court is not left in any doubt as
to whether or not any money was paid to the public
servant by way of bribe. We cannot, in the present
case, rely on the evidence of Jagdish Raj and Arjun
Das for the purpose of holding that a sum of Rs 50
20. Coming to the next argument that there was
absolutely no demand for bribe and in the absence
of such claim by the accused duly established by
the prosecution, the conviction cannot be
sustained. In support of the above claim, the
learned counsel for the appellant relied on the
decision of this Court in Banarsi Dass v. State of
Haryana [(2010) 4 SCC 450 : (2010) 2 SCC (Cri)
864] . It was an appeal under Article 136 of the
Constitution of India filed against the judgment and
order of conviction dated 20-11-2002 passed by
the learned Single Judge of the High Court of
Punjab and Haryana at Chandigarh. In that case, it
was contended before this Court that there is no
evidence to prove demand and voluntary
acceptance of the alleged bribe so as to attract the
offence under Section 5(2) of the Prevention of
Corruption Act, 1947. The other contentions were
also raised regarding merits with which we are not
concerned. The accused was charged for the
offence punishable under Section 5(2) of the 1947
Act as well as Section 161 (since repealed) IPC. In
para 23, this Court held that: (Banarsi Dass
case [(2010) 4 SCC 450 : (2010) 2 SCC (Cri) 864]
, SCC p. 456)
"23. To constitute an offence under Section 161
IPC it is necessary for the prosecution to prove that
there was demand of money and the same was
voluntarily accepted by the accused."
"23. ... Similarly in terms of Section 5(1)(d) of the
Act, the demand and acceptance of the money for
doing a favour in discharge of his official duties is
sine qua non to the conviction of the accused."
21. In para 25, this Court quoted the decision
rendered in C.M. Girish Babu v. CBI [(2009) 3 SCC
779 : (2009) 2 SCC (Cri) 1] and held that: (Banarsi
Dass case [(2010) 4 SCC 450 : (2010) 2 SCC (Cri)
864] , SCC p. 457)
"25. ... mere recovery of money from the accused
by itself is not enough in absence of substantive
evidence for demand and acceptance."
28. It needs no emphasis that the prosecution
has to prove the charge beyond reasonable doubt
like any other criminal offence and the accused
should be considered innocent till it is established
otherwise by proper proof of demand and
acceptance of the illegal gratification, the vital
ingredient, necessary to be established to procure
a conviction for the offences under consideration.
29. The High Court drew presumption under
Section 20 of the Act for charge under Section 7.
Based on that, it was held that the prosecution has
proved the offence punishable under Section 7 of
the Act. Section 20 of the Act, 1988 reads thus:
sections (1) and (2), the court may decline to draw
the presumption referred to in either of the said
sub-sections, if the gratification or thing aforesaid
is, in its opinion, so trivial that no interference of
corruption may fairly be drawn."
Sub-section (3) is a "non obstante clause". It
provides that where the gratification is trivial and
the court is of the opinion that no inference of
corruption may fairly be drawn, it may decline to
draw the presumption as referred to in sub-
sections (1) and (2). In other words, the court is
not bound to draw a presumption under Section 20
where the alleged gratification is too trivial.
31. When the evidence produced by the
prosecution has neither quality nor credibility, it
would be unsafe to rest conviction upon such
evidence. It is true that the judgments of the
courts below are rendered concurrently but having
considered the matter thoughtfully, we find that
the High Court as well as the Special Judge
committed manifest errors on account of
unwarranted inferences. The evidence on record in
this case is not sufficient to bring home the guilt of
the appellant. The appellant is entitled to the
benefit of doubt.
21. Per contra, Sri P. Prasanna Kumar, learned
impugned judgment. He further contended that in the
22. He also argued that mere admission of the
on hand.
23. He further pointed out that the very fact that
24. He further argued that admittedly the bill
25. In support of his contentions, he placed on
121. Section 7 of the Prevention of Corruption Act,
1988 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."
(emphasis supplied)
122. Under Section 7 of the PC Act, the mere
"obtaining", "accepting" or "attempting" to obtain
an undue advantage with the intention to act or
forbear from acting in a certain way is sufficient to
complete the offence. It is not necessary that the
act for which the bribe is given be actually
performed. The First Explanation to the provision
further strengthens such an interpretation when it
expressly states that the "obtaining, accepting, or
attempting" to obtain an undue advantage shall
itself constitute an offence even if the performance
of a public duty by a public servant has not been
improper. Therefore, the offence of a public servant
being bribed is pegged to receiving or agreeing to
receive the undue advantage and not the actual
performance of the act for which the undue
advantage is obtained.
123. It is trite law that illustrations appended to a
section are of value and relevance in construing the
text of a statutory provision and they should not be
readily rejected as repugnant to the section. [
Justice G.P. Singh, Principles of Statutory
Interpretation, 15th Edn. (2021), 136.] The
illustration to the First Explanation aids us in
construing the provision to mean that the offence
of bribery crystallises on the exchange of the bribe
and does not require the actual performance of the
act. It provides a situation where "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." It is clear that
regardless of whether S actually processes the
ration card application on time, the offence of
bribery is made out. Similarly, in the formulation of
a legislator accepting a bribe, it does not matter
whether she votes in the agreed direction or votes
at all. At the point in time when she accepts the
bribe, the offence of bribery is complete.
124. Even prior to the amendment to the PC Act in
2017, Section 7 expressly delinked the offence of
bribery from the actual performance of the act for
which the undue advantage is received. The
provision reads as follows:
"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
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 six
months but which may extend to seven years and
shall also be liable to fine.
Explanations.--(a)-
(c) * * *
(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."
(emphasis supplied)
125. The unamended text of Section 7 of the PC
Act also indicates that the act of "accepting",
"obtaining", "agreeing to accept" or "agreeing to
obtain" illegal gratification is a sufficient condition.
The act for which the bribe is given does not need
to be actually performed. This was further clarified
by Explanation (d) to the provision. In explaining
the phrase "a motive or reward for doing", it was
made clear that the person receiving the
gratification does not need to intend to or be in a
position to do or not do the act or omission for
which the motive/reward is received.
126. In Chaturdas Bhagwandas Patel v. State of
Gujarat [Chaturdas Bhagwandas Patel v. State of
Gujarat, (1976) 3 SCC 46 : 1976 SCC (Cri) 351] , a
two-Judge Bench of this Court reiterated that to
constitute the offence of bribery, a public servant
using his official position to extract illegal
gratification is a sufficient condition. It is not
necessary in such a case for the court to consider
whether the public servant intended to actually
perform any official act of favour or disfavour. In
the facts of the case, the public servant induced
the complainant to give a bribe to get rid of a
charge of abduction. It was later revealed that no
complaint had even been registered against the
complainant for the alleged abduction. However,
the Court held that the mere demand and
acceptance of the illegal gratification was sufficient,
regardless of whether the recipient of the bribe
performed the act for which the bribe was received.
127. Recently, in Neeraj Dutta v. State (NCT of
Delhi) [Neeraj Dutta v. State (NCT of Delhi),
(2023) 4 SCC 731 : (2023) 2 SCC (Cri) 352] a
Constitution Bench listed out the constituent
elements of the offence of bribery under Section 7
of the PC Act (as it stood before the amendment in
2017). B.V. Nagarathna, J. formulated the
elements to constitute the offence : (SCC p. 749,
para 5)
"5. The following are the ingredients of Section 7 of
the Act:
(i) the accused must be a public servant or
expecting to be a public servant;
(ii) he should accept or obtain or agrees to accept
or attempts to obtain from any person;
(iii) for himself or for any other person;
(iv) any gratification other than legal
remuneration; and
(v) as a motive or reward for doing or forbearing to
do any official act or to show any favour or
disfavour."
Consequently, the actual "doing or forbearing to
do" the official act is not a constituent part of the
offence. All that is required is that the illegal
gratification should be obtained as a "motive or
reward" for such an action or omission -- whether
it is actually carried out or not is irrelevant.
II. Neeraj Dutta v. State (NCT of Delhi),
(2023) 4 SCC 731
68. Distinguishing a presumption under Section
4(1) of the 1947 Act with a presumption under
Section 114 of the Evidence Act, it was observed
in Dhanvantrai Balwantrai Desai v. State of
Maharashtra [Dhanvantrai Balwantrai
Desai v. State of Maharashtra, AIR 1964 SC 575]
("Dhanvantrai Balwantrai Desai") that a
presumption under Section 114 of the Evidence Act
is discretionary in nature inasmuch as it is open to
the court to draw or not to draw a presumption as
to the existence of one fact from the proof of
another fact. This is unlike a presumption under
Section 4(1) of the 1947 Act or Section 20 of the
Act where the court has to draw such presumption,
if a certain fact is proved, that is, where any illegal
gratification has been received by an accused. In
such a case the presumption that has to be drawn
that the person received that thing as a motive of
reward. Therefore, the court has no choice in the
matter, once it is established that the accused has
received a sum of money which was not due to him
as a legal remuneration. Of course, it is open to the
accused to show that though that money was not
due to him as a legal remuneration it was legally
due to him in some other manner or that he had
received it under a transaction or an arrangement
which is lawful. The burden resting on the accused
in such a case would not be as light as it is where a
presumption is raised under Section 114 of the
Evidence Act and cannot be held to be discharged
merely by reason of the fact that the explanation
offered by the accused is reasonable and probable.
It must further be shown that the explanation is a
true one. The words "unless the contrary is proved"
which occur in this provision make it clear that the
presumption has to be rebutted by "proof" and not
by a bare explanation which is merely plausible. A
fact is said to be proved when its existence is
directly established or when upon the material
brought before it, the Court finds its existence to
be so probable that a reasonable man would act on
the supposition that it exists. Unless, therefore, the
explanation is supported by proof, the presumption
created by the provision cannot be said to be
rebutted.
87. Therefore, this Court cautioned that even if a
witness is treated as "hostile" and is cross-
examined, his evidence cannot be written off
altogether but must be considered with due care
and circumspection and that part of the testimony
which is creditworthy must be considered and
acted upon. It is for the Judge as a matter of
prudence to consider the extent of evidence which
is creditworthy for the purpose of proof of the case.
In other words, the fact that a witness has been
declared "hostile" does not result in an automatic
rejection of his evidence. Even, the evidence of a
"hostile witness" if it finds corroboration from the
facts of the case may be taken into account while
judging the guilt of the accused. Thus, there is no
legal bar to raise a conviction upon a "hostile
witness" testimony if corroborated by other reliable
evidence.
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.
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.
90. 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/documentary
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.
III. Vinod Kumar Garg v. State (NCT of Delhi)
(2020) 2 SCC 88
17. In the case at hand, the condition precedent to
drawing such a legal presumption that the accused
has demanded and was paid the bribe money has
been proved and established by the incriminating
material on record. Thus, the presumption under
Section 20 of the Act becomes applicable for the
offence committed by the appellant under Section
7 of the Act. The appellant was found in possession
of the bribe money and no reasonable explanation
is forthcoming that may rebut the presumption.
Further, the recovery of the money from the pocket
of the appellant has also been proved without
doubt. We, therefore, hold that money was
demanded and accepted not as a legal
remuneration but as a motive or reward to provide
electricity connection to Nand Lal (PW 2) for the
shed.
IV. Chaitanya Prakash Audichya v. CBI
(2015) 7 SCC 720
13. We have gone through the record and
considered the relevant material. The fact that PW
1 was awarded contracts by ONGC and that it was
a mandatory requirement to have the requisite
licence from the office of the Assistant Labour
Commissioner is well established. Further the fact
that PW 1 preferred applications, Exts. 31 and 32
for necessary licences is also established on record.
According to PW 3, the applications were registered
on 13-5-2003 and that the applications were in
order. Furthermore, according to this witness such
applications would normally be dealt within 2-3
days and that the applications were kept pending
because of the instructions of the appellant himself.
Though a feeble attempt was made to submit that
there were interpolations in the applications, the
assertion that the applications were complete and
kept pending because of instructions of the
appellant could not be controverted. We, therefore,
accept that the applications were complete in all
respects and as stated by PW 3 they were kept
pending because of the instructions of the
appellant. It is also part of the record that the site
in question was inspected by the appellant on 29-
5-2003 as the inspection notes Ext. 33 would
disclose. The assertion on the part of PW 1 that he
had an occasion to meet the appellant that day is
well supported. Though it was denied that any
meeting had taken place in the rest house where
demand was made as alleged, the facts as they
stand unfolded, fully substantiate the assertion
made by PW 1.
14. The complaint, Ext. 34 preferred on 30-5-2003
itself disclosed that the money was demanded and
that the complainant was asked to make the
payment by 30-5-2003 itself. Given the assertions
in the complaint, the submission that no
preliminary investigation could be undertaken
because of paucity of time is well founded. At the
same time the incongruity in the timing when
services of panch witnesses were sought for also
pales into insignificance. It is true that the
complaint did not state or suggest any time and
place at which the complainant was supposed to
fulfil the demand. Though in P. Parasurami
Reddy v. State of A.P. [(2011) 12 SCC 294 :
(2012) 1 SCC (Cri) 552] there are certain
observations that there was no prior commitment
fixing the time and place for receiving the bribe,
the decision discloses that there were various other
circumstances which weighed with this Court. In
any case, the facts in the present case show
otherwise.
15. It was asserted by the complainant in his
examination that he was asked by the appellant to
see him at his residence after the office hours.
Further, when PW 1 and PW 2 went to the house of
the appellant, the conversation which PW 1 had
with the wife of the appellant clearly shows that the
visit of PW 1 was quite expected. On this issue
there was no effective cross-examination at all. It
would therefore be inconsequential if no prior
commitment regarding fixing of the time and place
for receiving the bribe was mentioned in the
complaint.
16. The other two cases cited by the appellant
dealt with situations where the demand and
acceptance were not fully established and despite
that an attempt was made to rely on the
presumption invocable under Section 20 of the Act.
Such is not the case in the present matter. It is
further well established that where misconduct is
proved, the alleged enmity between the
complainant and the delinquent officer is
immaterial. (See B. Hanumantha Rao v. State of
A.P. [1993 Supp (1) SCC 323 : 1993 SCC (Cri)
117] )
17. The other two cases cited by the appellant
dealt with situations where the demand and
acceptance were not fully established and despite
that an attempt was made to rely on the
presumption invocable under Section 20 of the Act.
Such is not the case in the present matter. It is
further well established that where misconduct is
proved, the alleged enmity between the
complainant and the delinquent officer is
immaterial. (See B. Hanumantha Rao v. State of
A.P. [1993 Supp (1) SCC 323 : 1993 SCC (Cri)
117] )
18. In the circumstances we are not persuaded to
take a view different from the one which weighed
with the courts below. Affirming the decisions taken
by the High Court and the trial court, we dismiss
the present appeal. The bail bonds stand cancelled
and the appellant shall be taken in custody
forthwith to undergo the sentence awarded to him.
V. State of Gujarat v. Navinbhai Chandrakant
Joshi and others, (2018) 9 SCC 242
10. The High Court acquitted the accused on the
ground that there was no recovery from Accused 1
J.D. Patel and that the demand by the accused
persons has not been established by the
prosecution. The High Court took the view that
Accused 2 Navinbhai had no idea for what purpose
the money was given to Accused 1 J.D. Patel by PW
1 and therefore, it cannot be said that Accused 2
Navinbhai had accepted the bribe amount upon
demand to PW 1. The High Court was not right in
brushing aside the evidence of PW 1 who has
clearly stated that Accused 1 J.D. Patel demanded
bribe of Rs 1000 and the same was settled for Rs
500 for expediting the matter for conversion of the
plot for non-agricultural purpose. Recovery of the
tainted currency notes from Accused 2 Navinbhai
and the presence of anthracene powder in the right
hand of Accused 1 J.D. Patel and the pocket of the
shirt of Accused 2 Navinbhai clearly show that they
acted in tandem in the demand and acceptance of
the bribe amount. When the demand and
acceptance of illegal gratification has been proved
by the evidence of PWs 1 and 3, the High Court
was not right in holding that the demand and
acceptance was not proved. The findings of the trial
court did not suffer from any infirmity and the High
Court was not justified in setting aside the
conviction of the accused.
11. So far as the presumption raised under Section
20 of the Act for the offence under Section 7 of the
Act is concerned, it is settled law that the
presumption raised under Section 20 of the Act is a
rebuttable presumption, and that the burden
placed on the accused for rebutting the
presumption is one of preponderance of
probabilities. In C.M. Girish Babu v. CBI [C.M.
Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2
SCC (Cri) 1] , this Court held as under: (SCC p.
786, paras 21-22)
"21. It is well settled that the presumption to be
drawn under Section 20 is not an inviolable one.
The accused charged with the offence could rebut it
either through the cross-examination of the
witnesses cited against him or by adducing reliable
evidence. ...
22. It is equally well settled that the burden of
proof placed upon the accused person against
whom the presumption is made under Section 20
of the Act is not akin to that of burden placed on
the prosecution to prove the case beyond a
reasonable doubt."
Since it is established that the accused was
possessing the bribe money, it was for them to
explain that how the bribe money has been
received by them and if he fails to offer any
satisfactory explanation, it will be presumed that
he has accepted the bribe.
VI. State, Represented by Inspector of Police,
Pudukottal T.N., vs. A. Parthiban, (2006) 11 SCC
8. Every acceptance of illegal gratification whether
preceded by a demand or not, would be covered by
Section 7 of the Act. But if the acceptance of an
illegal gratification is in pursuance of a demand by
the public servant, then it would also fall under
Section 13(1)(d) of the Act. The act alleged against
the respondent, of demanding and receiving illegal
gratification constitutes an offence both under
Section 7 and under Section 13(1)(d) of the Act.
The offence being a single transaction, but falling
under two different sections, the offender cannot
be liable for double penalty. But the High Court
committed an error in holding that a single act of
receiving an illegal gratification, where there was
demand and acceptance, cannot be an offence both
under Section 7 and under Section 13(1)(d) of the
Act. As the offence is one which falls under two
different sections providing different punishments,
the offender should not be punished with a more
severe punishment than the court could award to
the person for any one of the two offences. In this
case, minimum punishment under Section 7 is six
months and the minimum punishment under
Section 13(1)(d) is one year. If an offence falls
under both Sections 7 and 13(1)(d) and the court
wants to award only the minimum punishment,
then the punishment would be one year.
VII. C.M. Sharma v. State of Andhra Pradesh,
Through Inspector of Police, (2010) 15
SCC 1
18. Further, corroboration of evidence of a witness
is required when his evidence is not wholly reliable.
On appreciation of evidence, witnesses can be
broadly categorised in three categories viz.
unreliable, partly reliable and wholly reliable. In
case of a partly reliable witness, the court seeks
corroboration in material particulars from other
evidence. However in a case in which a witness is
wholly reliable, no corroboration is necessary.
Seeking corroboration in all circumstance of the
evidence of a witness forced to give bribe may lead
to absurd result. Bribe is not taken in public view
and, therefore, there may not be any person who
could see the giving and taking of bribe. As in the
present case, a shadow witness did accompany the
contractor but the appellant did not allow him to be
present in the chamber. Acceptance of this
submission in abstract will encourage the bribe-
taker to receive illegal gratification in privacy and
then insist for corroboration in case of prosecution.
Law cannot countenance such a situation.
VIII. Neera Yadav v. Central Bureau of
Investigation, (2017) 8 SCC 757
16. Section 13 of the PC Act in general lays down
that if a public servant, by corrupt or illegal means
or otherwise abusing his position as a public
servant obtains for himself or for any other person
any valuable thing or pecuniary advantage, he
would be guilty of "criminal misconduct". Sub-
section (2) of Section 13 speaks of the punishment
for such misconduct. Section 13(1)(d) read with
Section 13(2) of the PC Act lays down the
essentials and punishment respectively for the
offence of "criminal misconduct" by a public
servant. Section 13(1)(d) reads as under:
"13. Criminal misconduct by a public
servant.--(1) A public servant is said to
commit the offence of criminal misconduct--
***
(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"
17. A perusal of the above provision makes it clear
that if the elements of any of the three sub-clauses
are met, the same would be sufficient to constitute
an offence of "criminal misconduct" under Section
13(1)(d). Undoubtedly, all the three wings of
clause (d) of Section 13(1) are independent,
alternative and disjunctive. Thus, under Section
13(1)(d)(i), obtaining any valuable thing or
pecuniary advantage by corrupt or illegal means by
a public servant in itself would amount to criminal
misconduct. On the same reasoning "obtaining a
valuable thing or pecuniary advantage" by abusing
his official position as a public servant, either for
himself or for any other person would amount to
criminal misconduct."
26. Sri P. Prasanna Kumar also placed on record
the principles of law enunciated in the case of State of
Karnataka vs. Chandrasha, reported in 2024 SCC OnLine
SC 3469. The relevant paragraphs are culled out
hereunder:
20. The main contention of the learned senior
counsel for the respondent is that the bill was
passed on 29.07.2009 and it was sent for
preparation of cheque to P.W.4 on the same day
itself and the cheque (Ex.P19) was also made
ready on 30.07.2009 and hence, on the date of
alleged trap i.e., on 05.08.2009, there was no work
pending with the respondent and he did not
demand or accept bribe from the complainant.
However, the said cheque was not issued to the
complainant and neither any intimation in this
regard was sent to the school authorities, till
05.08.2009 nor was the complainant informed that
the cheque was already ready. That apart, no
plausible reason was adduced on the side of the
respondent, as to why, it was retained in the office
of the Sub Treasury without being issued to the
party concerned. It is a common knowledge that
when the bill was submitted to the office of Sub
Treasury for sanction, only after issuance of the
cheque to the concerned, the work will be treated
as completed. In the instant case, no cheque was
issued, and it was kept pending as on the date of
trap. Therefore, the contention so made on the side
of the respondent cannot be countenanced by us.
21. It is settled law that the two basic facts viz.,
'demand' and 'acceptance' of gratification have
been proved, the presumption under Section 20
can be invoked to the effect that the gratification
was demanded and accepted as a motive or reward
as contemplated under Section 7 of the Act.
However, such presumption is rebuttable. Even on
the basis of the preponderance of probability, the
accused can rebut the same. In the present case,
the prosecution proved its case beyond reasonable
doubt, in respect of the 'demand' and 'acceptance'
of the bribe amount from the complainant and
recovery of tainted currency notes from the
possession of the respondent. The said operation is
preceded by recording of the demand in the tape
recorder. In such circumstances, the respondent
has to rebut the presumption by disproving the
case of the prosecution either in the cross-
examination of the prosecution side witnesses or
by adducing material evidence that the receipt of
Rs. 2,000/- was not a bribe amount, but a legal fee
or repayment of loan. However, he failed to do so
and on the contrary, we find the prosecution to
have proved the case beyond any doubt.
22. Though the respondent in his statement
recorded under Section 313 Cr. P.C. as well as
before the Lokayukta Police, stated that there were
loan transactions between himself and the
complainant; 8 to 10 days prior to the date of
incident the complainant borrowed a hand loan of
Rs. 2,000/- from the respondent; and when the
respondent pressurized the complainant to return
the loan amount, the present false case was
registered against him, there was absolutely no
evidence either in oral or documentary adduced to
substantiate the same. It is an admitted fact that
the complainant was working in a private aided
school and the respondent was working as First
Division Assistant in the Office of the Sub Treasury,
Afzalpur. There was no material evidence produced
to the effect that both were related closely to each
other so as to grant a hand loan and to prove the
grant of loan. In the absence of such material
evidence produced, the plea so taken by the
respondent, seems to be unbelievable. Therefore, it
can safely be inferred that the respondent had
received or accepted the currency notes on his own
volition and the testimony of P.W.1 to P.W.5
including the testimony of P.W.10 and P.W.12
would go to show the demand, acceptance and
recovery of the bribe amount from the possession
of the respondent and the prosecution proved the
charges framed against the respondent beyond
reasonable doubt.
23. In view of the aforesaid analysis, we find that
the trial Court based on the oral and documentary
evidence adduced by the parties, rightly found the
respondent guilty of the offences punishable under
Sections 7 and 13(1)(d) r/w Section 13(2) of the
Act and sentenced him for the same. However, the
High Court by placing reliance on the decision of
this Court in A. Subair's case (supra), held that
since no work was pending with the respondent as
on the date of trap, the ingredient to attract and
complete the offences punishable under Sections 7,
13(1)(d) read with Section 13(2) of the Act was not
met. The view so taken by the High Court is
unsustainable as the decision of this Court in A.
Subair's case (supra) did not support the view. It
was a case where the complainant was not even
examined and there were discrepancies in the
evidence of the other witnesses. In the present
case, we do not find such infirmities. Insofar as the
reference to sub section (3) to Section 20
regarding the triviality of the gratification, the act
sought or performed, and the amount demanded
cannot be considered in isolation to each other. The
value of gratification is to be considered in
proportion to the act to be done or not done, to
forbear or to not forebear, favour or disfavour
sought, so as to be trivial to convince the Court,
not to draw any presumption of corrupt practice. It
is also not necessary that only if substantial
amount is demanded, the presumption can be
drawn. The overall circumstances and the evidence
will also have to be looked into. Section 20 would
come into operation only when there is no nexus
between the demand and the action performed or
sought to be performed. But, when the fact of
receipt of payment or an agreement to receive the
gratification stands proved, there is a clear case of
nexus or corroboration and the presumption itself
is irrelevant. Section 20 gets attracted when it is
proved that the public servant has accepted or
agreed to accept any gratification other than legal
remuneration and in that case, presumption is that
it is the motive or reward for any of the acts
covered under Section 7, 11 or 13(1)(b) of the Act.
The presumption under Section 20 is similar to
Section 118 of the Negotiable Instruments Act,
1881, where the onus is on the accused to prove
that he is not guilty of the offences charged. The
first two limbs under subsections (1) and (2) of
Section 13 make it clear that adequacy of
consideration is irrelevant to draw the
presumption. That apart, sub-section (3) only
grants a discretion to Court to decline from drawing
any presumption if the amount is so trivial so that
such inference of corruption is not fairly possible in
the facts of the case. Therefore, it is not a rule but
an exception available to the Court to exercise its
discretionary power in the facts and circumstances
of the case. In the present facts of the case, we are
not inclined to exercise such discretion. As such,
the judgment of acquittal passed by the High Court
is illegal, erroneous and contrary to the materials
on record.
27. In view of the rival contention of the parties,
this Court perused the material on record meticulously.
On such perusal of the material on record, the following
points would arise for consideration:
i. Whether the material on record is sufficient
enough to maintain the order of conviction
recorded by the learned Trial Judge in
Spl.C.No.116/2010 for the offences
punishable under Section 7, 13 (1) (d) r/w
Section 13 (2) of the Prevention of
Corruption Act?
ii. Whether the appellant is in position to
establish that the impugned judgment is
suffering from legal infirmity and perversity
and thus, calls for interference?
iii. If the answer to the above points are in
affirmative and negative, whether the
sentence needs relook?
iv. What order?
28. REGARDING POINT Nos.1 and 2:
Prosecution in order to establish its case examined seven
witnesses as P.Ws.1 to 7. Among them P.W.1 S.Girish
Kumar is the complainant, who deposed about the work
pending with the complainant especially the bill dated
21.12.2009 in respect of the work order for painting and
other related works in a sum of Rs.14,11.494/-.
29. He further deposed about the demand of bribe
money by the appellant which he was not interested to
part with and therefore lodging the complaint vide Ex.P.1
and CBI conducting the entrustment mahazar by securing
the pancha witnesses and demonstrating the chemical
reaction of phenolphthalein powder with Sodium Carbonate
solution and thereafter actual trapping of the appellant.
30. In his cross-examination, he has admitted that
the tender work was not completed in toto and he had
furnished the running bill and there was an endorsement
made by the appellant to release 75% of the bill amount
on noting the fact that the work was not yet completed as
per the work order.
31. He also admitted that earlier to the present
bill, he had carried out about 20 work orders and all those
bills have been cleared by the appellant without
demanding the bribe amount. It is also admitted by him
that in respect of the work of other contractors also he has
no information that the appellant has demanded the bribe
money. Pertinently above admissions are made by him to
Court questions.
32. P.W.2 is the shadow witness who deposed
about the pre-trap mahazar and drawing up of trap
mahazar. In his cross-examination he clearly admits that
though he was directed to be present with the complainant
at the time of handing over the tainted currency to the
hands of the appellant and to observe the proceedings
carefully and speak about the demand and acceptance, he
admits that he did not accompany the complainant even
though he was required to do so. He admits that he was
standing about 200 feet away from the place where
appellant and complainant were conversing with each
other and he did not hear what conversation took place
between them. More so, the said place is machine room.
33. P.W.3 is the Trap Laying Officer who deposed
about the receipt of complaint, forming raid party, drawing
up of pre-trap mahazar and trap mahazar and spot sketch.
His evidence is almost formal in nature inasmuch as he
could not specifically say whether there was a demand and
acceptance except the oral testimony of P.W.1.
34. Sri Muralidhar, a Chief Engineer, Plant
Maintenance, HAL, Bengaluru is examined as P.W.4, who
deposed that complainant was roaming in the corridors of
the HAL and on enquiry, he told him about the pending
bill.
35. Sri. A.N. Muralidhar has deposed that the file is
with the appellant and therefore, he has to get the file
moved from appellant. He also deposed about the seized
documents marked at Exs.P.7 to P.12.
36. In his cross-examination he admits that
appellant was in-charge of his department and Smt. Vijaya
was working as Personal Assistant to appellant. He admits
that if anybody wants to visit the appellant, they have to
take necessary permission from Smt. Vijaya by entering
their details, as HAL campus was protected zone and entry
inside is a restricted entry. He has identified Ex.P.11 (a)
as disputed bill. He admits the endorsement made in
Ex.P.11 (a) which reads as under:
"Please process the bill as discussed for the extent
of work ceiling completed 75% of the actual.
Balance after floor painting get sacrifier and sample
test by 29.12.2009".
37. He admits that said endorsement was
addressed to B.T. Narayanaswamy and endorsement is by
the personal assistant of the appellant. He admits that as
per the said endorsement, 75% of the bill had to be paid
to the contractor on or before 29.12.2009. He admits the
statement given by him before the Investigating Officer
which reads as under:
"On receipt of the bill, myself and Shri. B.T.
Naryanaswamy, Senior Assistant Civil will together
carry out the measurement of the painting work
done by M/s Annapoorneshwari Associates. After
the measurement, the measurement book will be
put up before chief Manager (Plant Maintenance)
who will examine the details of the measurement
book and put his signature in the measurement
book on token of checking. Later the measurement
book along with covering letter will be sent through
Chief Manager (Plant Maintenance) to the accounts
section of overhaul division for payment of the bill.
Hence it is to state that after measurement, the bill
has to be put up before chief Manager again for his
final recommendation."
I have stated before the CBI on 3.2.2010 as
follows:-
"On receipt of the bill myself along with
B.T.Narayana Swamy, Senior Assistant, Civil and
the contractor are required to carry out the
measurement of the painting work done by M/s
Annapoorneshwari Associates at Mirage Hanger"
38. He submits that in Ex.P.8 there is an
endorsement made which is to himself and
Narayanaswamy and beneath such endorsement appellant
has signed on 28.12.2009 itself. He admits that Ex.P.8
correspondence to Ex.P.11 (a) dated 29.12.2009. He
further admits that he received the Bill on 30.12.2009
itself. He further admits that as on 30.12.2009 procedure
of taking of the measurement of painted ceiling of Hanger
and reporting the same to the appellant was pending in his
department.
39. He also admits the time of receipt of the bill is
not mentioned in Ex.P.8. He admits that the bill was
received by the appellant on 21.12.2009. 25.12.2009
was a general holiday, 26.12.2009 appellant was on leave
and 27.12.2009 was Sunday.
40. He further admits that on 28.12.2009 itself the
bill was referred to him and Ex.P.9 is the file of contract
pertaining to the complainant. He further admits that in
Ex.P.9 there is a reference to calling of tender, acceptance
of tender, issue of work order and the date of completion
of the work. He admits that the endorsement is to be
made for processing of the bill as to the completion of the
work. He admits the letter in Ex.P.9 which is marked as
Ex.D.1. The contents of Ex.D.1 reads as under:
"With reference to the above subject work, we like
to inform you that the user department had
stopped the work of floor preparation stating that
the previous floor painting should be scraped
completely and we informed the same to your
engineering department and your engineering
department instructed us orally to scrape the floor
paint which was not in our scope of work and we
had started it by your oral instruction by using
paint removers and our labour force but till now we
have not and received any devated order or any
letter from your side so we are stopping the work
from 20.12.2009 till the thing is finalized. So we
request you to please finalize as early as possible."
41. He admits another letter dated 21.12.2009
which is marked as Ex.D.2. Contents of Ex.D.2 reads as
under:
"With reference to the above subject work we had
written a letter regarding devation of work which
was directed by orally from your department to us
and we have started the work on 17.12.2009 and
15-20% of wok has been completed but still now
we have not received the devation order or any
letter from your side. So we request you to please
inform us that we should stop the work or execute
the work."
42. He further admits that as on 31.12.2009 bill
pertaining to the ceiling work was not in possession of
appellant. He admits that as on 21.12.2009, his
department had received Ex.D.1, Ex.D.2 and Ex.P.8. He
further admits that complainant is the son of union leader
of HAL. He admits that he is the senior most officer in the
department after the appellant. He admits that after the
work is completed in his department, the bill would be
recommended to accounts department for payment. He
further admits that whatever the decision that is taken by
the appellant, it will be based on the field work report to
be furnished by his department.
43. P.W.5 - Dr. Ravi Shankar is the officer from
FSL department who has examined the seized articles and
given a report vide Ex.P.13.
44. P.W.6 - D. Balasunder is the managing
Director of HAL who issued sanction order to prosecute the
appellant vide Ex.P.14.
45. P.W.7 - R. Ramachandran is the Investigating
Officer who conducted the further investigation after taking
over the investigation from P.W.3 and filing the charge
sheet.
46. In the cross-examination of P.W.7 it is elicited
that in Ex.P.20 there are telephone numbers and Ex.D.3 is
the telephone number of the complainant. In Ex.D.3 there
is a mention that an SMS has been sent by P.W.1 to the
phone number of the complainant on 01.05.2009 and
02.05.2009.
47. He further answered that when complainant
was examined by him, he did not reveal about sending of
SMS threatening the complainant. Telephone bill
pertaining to the appellant was confronted to him which he
admits and therefore the same was marked at Ex.D.4. He
admits that in respect of an SMS sent, it would be either
stored in the phone or sim card and sim card assumes the
important role in storing the data.
48. He admits that as he enquired the appellant
soon after the trap, appellant has told him that
complainant has forcibly thrusted currency notes into his
pocket. He admits that he did not made the statement of
the accused pertaining to his defence that he has not
demanded the bribe and it is the complainant who thrusted
the currency notes into his pocket as it is an afterthought
of the appellant.
49. He admits that as on the date of trap,
appellant had already recommended for disburse of 75%
of bill amount to measurement department. He also
admits that on the date of trap, there was no official
favour to be made by the appellant in favour of the
complainant.
50. Learned counsel for the appellant, based on
the aforesaid material evidence, contended that one of the
prime ingredient to attract offence under Section 7, 13 (1)
(d), r/w Section 13 (2) of Prevention of Corruption Act is
that a work of the complainant must be pending with the
appellant and to complete the said work, appellant must
have made demand for illegal gratification to the
complainant by misusing the official power. Such a
parameter is not established by the prosecution in the case
on hand, in view of the admissions which have been
elicited in the cross-examination of prosecution witnesses
and sought for allowing the appeal.
51. Per contra, learned counsel for the respondent
contended that in the case on hand, the tainted currency
has been handled by the appellant and therefore, the
colour test stood positive.
52. He would further contend that admittedly, as
on the date of trap, the bill of complainant was not
processed and paid which shows that the work was very
much pending and appellant being the person who was
required to process the bill had not processed the same.
53. He further contended that the material
evidence on record is sufficient enough to prove the
necessary ingredients which has been rightly appreciated
by the learned Trial Judge in the Court below and
therefore, sought for dismissal of the appeal.
54. On re-appreciation of the material evidence on
record it is crystal clear that the bill was filed with the
office of the appellant on 21.12.2009. Admittedly, it is a
running bill, in other words, work was not completed as
per the work order by the complainant.
55. P.W.4 has catergorically admitted that
25.12.2009 was a general holiday, 26.12.2009 accused
was on leave and 27.12.2009 was Sunday. He further
admitted that on 28.12.2009 itself appellant had made an
endorsement and referred the file to the Section of P.W.4
recommending payment of 75% of the bill amount as the
work was not yet completed.
56. Pursuant to Ex.P.8 endorsement, Ex.P.11 (a)
was issued and as on 30.12.2009, the file containing the
bill of the complainant was in possession of P.W.4 and it
was not in the possession of the appellant. As such,
appellant demanding illegal gratification on 30.12.2009 as
is contended by prosecution is doubtful.
57. Endorsement made at Ex.P.8 and Ex.P.11 (a)
having been admitted by P.W.4, it is crystal clear that on
28.12.2009 i.e., the very next working day that the
appellant resumed to the office, he has made necessary
endorsement recommending 75% of the bill amount.
58. When it is also admitted by P.W.4 that at the
time of presentation of bill on 21.12.2009 is not
mentioned. Taking note of the same, the time that was
remaining for the appellant to process the bill was
22.12.2009 to 28.12.2009. 22.12.2009, 23.12.2009 and
24.12.2009 are the three days on which the bill was being
processed and on 28.12.2009 the appellant has processed
the bill and has recommended payment of 75% of the bill
amount.
59. As such, even before the alleged demand
made by the appellant, the file had already been processed
and was sent to P.W.4. P.W.4 was thereafter required to
take the measurements of the painting work and then file
a report and then sent again for the purpose of
recommendation to the accounts department. Even before
that could have been done, on 31.12.2009 trap has taken
place. When the complainant contacted in the
interregnum, and when exactly the appellant demanded
the bribe money is not forthcoming on record either in the
complaint or in the oral testimony of the complainant.
60. Therefore, the question of the demand and
acceptance is not established by the prosecution by placing
necessary evidence on record. Admittedly, there is no
tape recorder conversation though the same was directed
to be used for recording the conversation.
61. P.W.2 is the shadow witness. It is pertinent to
note that despite specific direction to him by the head of
the raid party to accompany the complainant when the
demand and acceptance would take place. Despite such
direction P.W.2 did not accompany the complainant.
Admittedly, he was standing at a distance of 200 feet from
away from the complainant and accused. He admits that
he could not hear the conversation between the
complainant and the appellant. In other words, insofar as
the demand is concerned on the day of trap, except the
sole testimony of the complainant, no other plausible
evidence is placed on record. Pertinent to note that
defence has elicited in the cross-examination of the
investigating officer that accused has sent two SMS on
01.05.2009 and same is also depicted in Ex.D.4. What
exactly the message was sent on 01.05.2009 is not
investigated by the Investigating Officer.
62. It is also admitted by P.W.4 that complainant
is the son of union leader who used to get majority of the
work orders in HAL. It is also found from the material on
record especially while answering the Court question by
P.W.1 that appellant had not demanded any bribe money
when he processed more than 20 bills of the complainant
earlier to the bill in question.
63. Likewise, to another Court question whether he
has got knowledge that whether appellant has demanded
any bribe money from other contractors, complainant has
categorically answered that appellant had not demanded
money from other contractors for processing their bills.
64. These two answers are significant enough in
appreciating the case of the prosecution in toto.
Therefore, looking into the conduct of the appellant in
recommending 75% of the bill to be processed on
28.12.2008 itself as per Ex.P.8 and Ex.P.11 (a), the sole
testimony of complainant with regard to the fact of
demanding the bribe money by the appellant without there
being any suitable corroboration, cannot be believed so as
to uphold the order of conviction.
65. In the light of above factual aspects, especially
as on 30.12.2009, the file was with P.W.4 and nothing was
required to be done by the appellant till file again reaches
his table after being processed by P.W.4, this Court is of
the considered opinion that appellant purposefully retained
the file of the complainant with a demand of bribe cannot
be believed.
66. Further, it is settled principles of law and
requires no emphasis that unless demand and acceptance
is properly established by the prosecution, no offence
under Section 7, 13 (1) (d) and 13 (2) of the Prevention of
Corruption Act can be held to be proved.
67. In this regard, this Court gainfully places
reliance on the principles of law enunciated in the aforesaid
judgments relied on by the learned counsel for the
appellant.
68. However, leaned counsel for the CBI while
referring to the citations cited by him in Sita Soren supra,
wherein the principles of law enunciated by the
Constitution Bench of Apex Court in Neeraj Dutta supra
has been approved, contended that mere acceptance of
the tainted currency would complete the offence under
Section 7 of the Prevention of Corruption Act.
69. No doubt, the law has evolved as is contended
on behalf of the CBI in aforesaid judgments. But, in a
given case if the defence propounds an alternate theory for
the handling of the tainted currency, especially the tainted
currency being thrusted on accused, the degree of proof to
be placed by the accused is preponderance of possibilities
and not strict proof. Defence had stated that the appellant
was somehow wanted to escape from the consequences of
violating the terms of the work order and therefore
hurriedly submitted the bill on 21.12.2009 itself, though
the work had not been completed in toto. It is also
established by the defence that in view of writing of
Exs.D.1 and D.2 by the complainant, the theory put
forward by the appellant stands established. Admittedly,
in the teeth of contends of Exs.D.1 and D.2 much earlier to
the date of trap, this Court is of the considered opinion
that considering the previous conduct of the appellant
having been admitted by complainant, the isolated incident
of colour test turning positive on the day of trap alone
would not be sufficient to maintain the order of conviction.
70. It is settled principles of law and requires no
emphasis that on the same set of facts and materials on
record if two views are permissible, view that favours the
accused must be preferred.
71. Likewise, it is equally settled principles of law
that prosecution has to travel a long distance from may be
proved to actual proof.
72. Yet another celebrated principle of criminal
jurisprudence is that any amount of suspicion would not
take the seat of proof.
73. Keeping in background the above principles,
viewed from any angle, in the absence of sufficient proof of
demand and acceptance mere recovery of the tainted
currency from the appellant, for which, there is a suitable
explanation offered by the appellant that the money was
thrusted into his pocket assumes a greater significance in
appreciating the case in toto.
74. Keeping these aspects in the background when
the material evidence on record is re-appreciated by this
Court, this Court is of the considered opinion that the
prosecution evidence placed on record is hardly sufficient
to hold that the prosecution is successful in establishing all
the ingredients which are required to attract the offence
punishable under Section 7, 13 (1) (d), r/w Section 13 (2)
of the Prevention of Corruption Act.
75. There cannot be any dispute as to the
principles of law enunciated in the judgment of State of
Karnataka vs. Chandrasha, reported in 2024 SCC
OnLine SC 3469. However, facts involved in the said
case are altogether different from the facts involved in the
case on hand especially shadow witness did not
accompany the complainant in the case on hand and
uncorroborated oral evidence of complainant alone cannot
form the basis for recording of conviction against the
appellant.
76. Accordingly, this Court is of the considered
opinion that the point No.1 is to be answered in the
Negative and the same is recorded. Consequently, point
No.2 is answered in Affirmative.
77. Regarding point No.3: Since, answer to
point No.1 in the Negative and point No.2 in the
Affirmative, appellant needs to be acquitted by setting
aside the sentence.
78. Regarding point No.4: In view of finding of
this Court on point Nos.1 to 3 as above, following order is
passed:
ORDER
(i) Appeal is allowed.
(ii) Impugned judgment of conviction passed in
Special (Corruption) Case No.116/2010, dated
20.04.2011, on the file of XLVII Additional City
Civil and Sessions Judge and Special Judge for
CBI Cases, Bengaluru is hereby set aside.
(iii) Bail bond stands discharged.
Sd/-
(V. SRISHANANDA)
JUDGE
MR
