"13. Criminal misconduct by a public
servant.--
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:
(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."
(Emphasis supplied)
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."
(Emphasis supplied)
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.
12. The Apex Court, in its latest judgment, in the case of
AMAN BHATIA v. STATE (GNCT OF DELHI)6, while considering
the purport of Section 7 of the Act has held as follows:
".... .... ....
51. In C.K. Damodaran Nair v. Govt. of India, (1997) 9
SCC 477, this Court, although interpreting the term "accept" in
the context of the 1947 Act, observed that "accept" means to
take or receive with a consenting mind. In contrast, "obtain"
was understood to imply securing or gaining something as a
result of a request or effort. In both instances, a demand or
request by the receiver is a prerequisite for establishing an
offence under Sections 7 and 13(1)(d) of the PC Act.
52. It is well-settled that mere recovery of tainted
money, by itself, is insufficient to establish the charges
against an accused under the PC Act. To sustain a
conviction under Sections 7 and 13(1)(d) of the Act
respectively, it must be proved beyond reasonable doubt
that the public servant voluntarily accepted the money,
knowing it to be a bribe. The courts have consistently
reiterated that the demand for a bribe is sine qua non for
establishing an offence under Section 7 of the PC Act.
53. A five-Judge Bench of this Court in Neeraj
Dutta v. State (Government of NCT of Delhi), (2023) 4 SCC
731, categorically held that an offer by bribe-giver and the
demand by the public servant have to be proved by the
prosecution as a fact in issue for conviction under Sections 7
and 13(1)(d)(i) and (ii) of the PC Act. Mere acceptance of illegal
gratification without proof of offer by bribe-giver and demand by
the public servant would not make an offence under Sections 7
and 13(1)(d)(i) and (ii) of the PC Act. The relevant observations
are reproduced hereinbelow:
2025 SCC OnLine SC 1013
"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."
(Emphasis supplied)
54. It was further explained by this Court in P.
Satyanarayana Murthy v. State of A.P., (2015) 10 SCC
152, as follows:
"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)
55. From the above exposition of law, it may be
safely concluded that mere possession and recovery of
tainted currency notes from a public servant, in the
absence of proof of demand, is not sufficient to establish
an offence under Sections 7 and 13(1)(d) of the PC Act
respectively. Consequently, without evidence of demand for
illegal gratification, it cannot be said that the public servant
used corrupt or illegal means, or abused his position, to obtain
any valuable thing or pecuniary advantage in terms of Section
13(1)(d) of the PC Act.
56. The present case is not one of an "offer to pay by the
bribe-giver" where, in the absence of any demand from the
public servant, the mere acceptance of illegal gratification would
constitute an offence under Section 7 of the PC Act. The
expression "offer" indicates that there is a conveyance of an
intention to give, which must be communicated and understood
by the recipient, leading to meeting of minds. Consequently, the
offer is accepted. For such an acceptance to constitute an
offence under Section 7, there must be clear and cogent
evidence establishing that the public servant was aware of the
offer and accepted it voluntarily, knowing it to be illegal
gratification. In other words, even where there is no express
demand, the bribe-giver and the bribe-taker must be shown to
have been ad idem as regards the factum of offer of bribe.
57. By applying the abovementioned principles to the
evidence on record, we are of the considered view that, having
regard to material inconsistencies in the testimony of the
complainant and the testimony of the panch witness, the
allegation of demand by the appellant herein does not emerge
clearly, let alone being proved beyond reasonable doubt.
58. Undoubtedly, when dealing with a wholly reliable
witness, the court faces no difficulty in reaching a conclusion, it
may convict or acquit solely on the basis of such testimony,
provided it is free from any suspicion of interestedness,
incompetence, or subordination. Similarly, in the case of a
wholly unreliable witness, the court again faces no ambiguity in
discarding the testimony. The real challenge arises when the
witness is neither wholly reliable nor wholly unreliable. In such
situations, the court must proceed with caution and seek
corroboration in material particulars, whether through direct or
circumstantial evidence. The court's duty to act on the
testimony of a single witness arises when it is satisfied, upon a
careful perusal of the testimony, that it is free from all taints
and suspicions. [See: VediveluThevar v. State of Madras, 1957
SCC OnLine SC 13; State of Madhya Pradesh v. Balveer
Singh, 2025 SCC OnLine SC 390]."
(Emphasis supplied)
The Apex Court also considers the presumption under Section 20 of
the Act and holds on examination of evidence, the prosecution has
failed to establish the guilt beyond reasonable doubt. The Apex
Court has held as follows:
".... .... ....
v. Presumption under Section 20 of the PC Act
64. Insofar as the presumption under Section 20 of
the PC Act is concerned, such presumption is drawn
only qua the offence under Sections 7 and 11 respectively
and not qua the offence under Section 13(1)(d) of the PC
Act. The presumption is contingent upon the proof of
acceptance of illegal gratification to the effect that the
gratification was demanded and accepted as a motive or
reward as contemplated under Section 7 of the PC Act.
Such proof of acceptance can follow only when the
demand is proved.
65. In that case, the prosecution evidence alone cannot
be considered for the purpose of coming to the conclusion. The
evidence led by the prosecution and, the suggestions made by
the defence witnesses, if any, are also required to be
considered. It is then to be seen as to whether the total effect of
the entire evidence led before the court is of a nature by which
the only conclusion possible was that the public servant
accepted the amount. If the answer is in affirmative, then alone
it can be held that the prosecution established the case beyond
reasonable doubt.
66. Undoubtedly, the presumption under Section 20
arises once it is established that the public servant
accepted the gratification. However, in determining
whether such acceptance occurred, the totality of the
evidence led at the trial must be appreciated. The
evidence led by the prosecution, the suggestions made by
the defence witnesses, if any, the entire record is
required to be considered. Only if the cumulative effect of
all the evidence is such that the sole possible conclusion
is that the public servant accepted the gratification can it
be said that the prosecution has established its case
beyond reasonable doubt."
(Emphasis supplied)
On a coalesce of the judgments rendered by the Apex Court,
as quoted supra, the soul of Section 7 is demand and
acceptance. The unmistakable inference on the
interpretation, in the considered view of the Court would be,
if there is demand, but no acceptance it would not make an
offence under Section 7. If there is acceptance but no
demand, it would then also make no offence under Section 7.
An act alleged under Section 7 should have the ingredients
of demand and acceptance and it is for the performance of a
public duty or forbearance from performance. Therefore,
demand and acceptance should be for the purpose of
performance of some duty.
APPLICABILITY OF THE LAW TO THE FACTS OF THE CASE:
13. The complaint is quoted hereinabove. The complaint is
vivid in minute details of what the petitioner had demanded and the
reason for demand. It is the petitioner who had directed the
complainant to come with the money of ₹3,80,000/- to
Venkateshwara Sweetmeat Stall. All the four sit in a car. Pre-
trap mahazar had already been drawn and panch witnesses
were secured. The trap was laid when the complainant and
another, the driver and the petitioner were in the car. Money
is recovered from the car. The trap panchanama is drawn.
The trap panchanama indicates recovery of ₹3,80,000/-
from the vehicle of the petitioner in which the complainant
was seated in the rear seat. If the petitioner had not
demanded money, it is ununderstandable as to why the
complainant would come to Venkateshwara Sweetmeat Stall
with the money unless directed by the petitioner. Therefore,
there is prima facie demand in the case at hand. Recovery is
made from the car. The complainant was holding the cash.
The recovery was made at the time when the petitioner was
accepting the cash. Phenolphthalein test turned, the hands,
of the petitioner to pink colour. The swab was taken at the
spot from the hands. All these would prima facie lead to an
inference that the petitioner has demanded and accepted the
bribe. At the time of acceptance, he was caught. Work
pending or otherwise is immaterial, as it is today no law that only if
the work is pending inference can be drawn on demand and
acceptance. As that has now been watered down by the Apex Court
in the Seven Judge Bench judgment in the case of SITA SOREN v.
UNION OF INDIA reported in (2024) 5 SCC 629. Therefore,
whether work is pending or otherwise is immaterial for the
allegation of proof of demand and acceptance.
14. The case at hand involves a maze of facts. Prima facie
evidence is goaded against the petitioner. Applying the law as laid
down by the Apex Court in the afore-quoted judgments to the facts
of the case would lead to a solitary conclusion that there is prima
facie proof of demand and acceptance. When prima facie proof
exists of demand and acceptance, and there is recovery of money,
the subject crime cannot be said to be emerging from a failed trap.
It becomes a matter of investigation, in the least, by the 1st
respondent/Police. There is no warrant to interfere in the case at
hand at the stage of investigation.
15. In the light of the preceding analysis, this petition lacking
in merit stands rejected. Interim order of any kind subsisting shall
stand dissolved.
It is made clear that the observations made in the course of
this order are only for the purpose of consideration of the case of
the petitioner under Article 226 of the Constitution of India read
with Section 482 of the Cr.P.C., and would not influence the
investigation against the petitioner.
Sd/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:MJ/SS
