Dismissed

Subhansh Chand Srivastava v. State of U.P. through C.B.I./Acb/Lucknow

Allahabad HC19 Dec 2022/564/2012

Case brief

AI extract

What is this about?

Appeal against conviction of a railway office superintendent under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 for demanding and accepting a bribe of Rs.1,000 as first instalment. Applying the law on proof of demand and acceptance, the court found the charges proved and dismissed the appeal, upholding the sentence.

What did the court decide?

Appeal dismissed; conviction and sentence under Sections 7 and 13(2) r/w 13(1)(d) of the PC Act, 1988 upheld; bail bonds cancelled; appellant directed to surrender forthwith.

Subhansh Chand Srivastava Vs State of U.P. through… — Corruption | Allahabad HC (2022)

AFR

Court No. - 10

Case :- CRIMINAL APPEAL No. - 564 of 2012

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Appellant :- Subhansh Chand Srivastava Respondent :- State Of U.P. Through C.B.I./Acb/Lucknow Counsel for Appellant :- Nandit K. Srivastava,Anil Kumar Tripathi,Anurag Shukla,H.B. Singh,Pritma Shastri,Purnendu Chakravarti

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Counsel for Respondent :- Bireshwar Nath,S.B. Panday,Shiv P. Shukla

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Hon'ble Dinesh Kumar Singh,J.

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1. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’) read with Section 27 of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘PC Act, 1988') has been filed by the appellant against the judgment and order dated 30.03.2012 passed by the Special Judge, Anti Corruption (West), CBI, Lucknow in Case No.14 of 1999 (State Vs. Subhash Chand Srivastava) under Section 7 and 13(2) read with 13(1) (d) of PC Act, 1988, arising out of R.C. No. 6(A)/1999, P.S. CBI/SPE/ACB, Lucknow, whereby the learned Special Judge has convicted and sentenced the appellant for 6 months rigorous imprisonment with fine of Rs. 1,500/- and 15 days additional simple imprisonment, in default of fine for offence under Section 7 of the PC Act, 1988 and 1 year rigorous imprisonment with fine of Rs. 1,500/and 15 days additional simple imprisonment, in default of fine for offence under Section 13(2) read with Section 13(1)(d) of the PC Act, 1988. It was directed that both the sentences would run concurrently.

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2. The appellant was posted and was functioning as Office Superintendent-II in establishment section in the office of D.R.M. (Personnel), Northern Railways, Lucknow. Complaint dated 30.01.1999 was lodged by one Ram Kumar-IV who was posted as Diesel Assistant, Alambagh Office Goods Lobby, Mawaiyya, Northern Railways, Lucknow alleging that the accused-appellant demanded a bribe amount of Rs.2,000/- as illegal gratification other than legal remuneration from Sri Ram Kumar-IV for favour of ensuring preparation of outstanding pay bill/payments for the months of October and November, 1998. In the month of October and November, 1998 the complainant was on leave for 8 days and 12 days respectively.

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3. On the basis of the complaint, an FIR was lodged on the same day i.e. 13.01.1999 by the C.B.I. under Section 7 of the PC Act, 1988. Verification was conducted by Sri Jayant Kashmiri, Inspector, C.B.I., Lucknow. The accusedappellant was caught red handed while accepting Rs.1,000/- as first installment of bribe amount on 14.01.1999 for sending the charge memo in respect of pay bills of the complainant.

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4. After completion of the investigation, the C.B.I. submitted charge-sheet (Exh. Ka 36) under Sections 7 and 13(2)/13(1)(d) of the PC Act, 1988 against the accused-appellant. The Court took cognizance on the charge-sheet and summoned the accused to face trial. Learned trial court framed charges under Sections 7 and 13(2)/13(1)(d) of the PC Act, 1988 on 25.02.2002 against the accused-appellant, which he pleaded not guilty and claimed trial.

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5. During the investigation, it was noticed that preparation of leave account/advice note relating to the complainant, Ram Kumar for the months of October and November, 1998 was pending with the accused-appellant and for the preparation of the same and to ensure release of payment for the leave period in favour of the complainant, the accused-appellant demanded a bribe amount of Rs.2,000/-. The complainant who was not willing to pay the said amount, lodged a complaint with the C.B.I., and a trap was laid and the accused-appellant was caught red handed while demanding and accepting the first installment of bribe of Rs.1,000/- from the complainant. Bribe amount was recovered from the drawer of the table of the accused-appellant. The accused-appellant managed to escape from the spot, as such no hand wash could be taken place at that time.

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6. Prosecution to prove its case, examined as many as 11 witnesses. Statement of the accused-appellant was recorded under Section 313 Cr.P.C. on 21.2.2012 and his plea was of denial. He did not adduce any oral or documentary evidence in his defence. Trial court after analyzing in detail found the charge against the accusedappellant regarding demand, acceptance and recovery of bribe proved beyond reasonable doubt, and thus, convicted and sentenced the accused-appellant as mentioned above.

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7. Sri Anurag Shukla, learned counsel appearing for the accused-appellant has submitted that though the prosecution has failed to prove its case to bring charge home against the accused-appellant but the trial court has convicted and sentenced the accused-appellant without properly appreciating the evidence brought on record.

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8. It has been further submitted that the trial court has framed following four points for determination, which are essentially ingredients of the offence for which the accused-appellant was charged:-

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“(i) Whether Sri Subhash Chand Srivastava was in a position to do any favour or disfavour to the complainant?

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(ii) Whether Sri Subhash Chand Srivastava demanded Rs.2000/- as illegal gratification from the complainant for passing his claim?

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(iii) Whether accused accepted Rs.1000/- as bribe from the complainant?

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(iv) Whether the alleged amount of Rs.1000/- as bribe, was recovered from the accused?”

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The learned trial Court in the entire judgment has not answered any of the aforesaid points framed for determination and, therefore, impugned judgment is bad in law and required to be set-aside.

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9. It has been further submitted that admittedly, there was no recovery of Rs.1,000/- from the possession of the accused-appellant. P.W.-2, the complainant had failed to prove the place of recovery of bribe of Rs.1,000/-. At one place the complainant (P.W.-2) in his deposition had said that he had kept the money in an envelope in the almirah, however, at page 10, he had said that money in the envelope was kept in a drawer of the seat of the accused-appellant.

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10. When the complainant reached to the office of the accused-appellant, there was no demand of bribe or illegal gratification made by the accused-appellant from him. The accused-appellant allegedly asked the complainant “Kaise aye ho?”

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11. Preparation of pay bills of the complainant was to be done by Sri Ved Prakash Tiwari, the then Head Clerk in the office of D.R.M., Northern Railways, Lucknow (P.W.-9), and the accused-appellant had no role in the same. He was not responsible for keeping the leave record. Evidence with regard to demand of bribe was based on tape recorded conversation between the accused-appellant and the complainant, however, the same was not produced during the course of trial.

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12. Independent witness, Satish Kumar Srivastava (P.W.-3) had not seen the drawer from which the bribe amount was recovered as he was standing other side of the table. Independent witness, Kapil Nath Rastogi, who had allegedly recovered the bribe, was not produced during the trial.

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13. It has been submitted that prosecution had failed to prove that the accusedappellant disappeared from the alleged scene of incident instead he was arrested

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on the spot. The trap team reached to the office of the accused-appellant during lunch hour and the complainant mischievously put the bribe amount in the drawer of the table of the accused-appellant.

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14. Sri Anurag Shukla, learned counsel appearing for the accused-appellant has submitted that it is the basic principle of criminal jurisprudence that burden of proof always lies on the prosecution, and it never gets shifted. It is the onus only which shifts from stage to stage. There can be no conviction solely on the basis of allegation unless the charge is proved by leading cogent and credible evidence beyond reasonable doubt.

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15. The prosecution had failed to prove any motive for demand of bribe from the accused-appellant as the accused-appellant was not in position to give any favour to the complainant. In the present case, neither demand is proved nor recovery was effected from the possession of the accused-appellant.

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16. On the other hand, Sri Shiv P. Shukla, learned counsel appearing for the C.B.I. has submitted that the prosecution had been able to prove the charge against the accused-appellant beyond reasonable doubt. Learned trial court has considered the evidence in detail and rightly held that the accused-appellant had demanded and accepted the bribe amount of Rs.1,000/- from the complainant, which was recovered from the drawer of the table of the accused-appellant. He, therefore, has submitted that considering the evidence of the prosecution witnesses and the documentary evidence led by the prosecution, the appeal filed by the accused-appellant is liable to be dismissed.

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17. For decision in the appeal, it would be appropriate to take note of the evidence brought by the prosecution in support of its case against the accusedappellant.

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18. P.W.-1, Sri S.M.N. Islam, who was posted as Senior Divisional Personnel Officer, Northern Railway, Lucknow, had deposed before the court that the accused-appellant was posted as O.S.-II, in D.R.M. (Personnel) Office, on a Class-III post. The witness was competent to appoint and remove the accusedappellant from the post. The C.B.I. requested him for sanctioning the prosecution of the accused-appellant. After considering the case, facts and material brought before him, he passed the order granting sanction for prosecution of the accusedappellant. He proved the sanction order, which was marked as Exh Ka-1.

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19. P.W.-2, Sri Ram Kumar-IV, Diesel Asstt., Northern Railway Lucknow, was the complainant of the case, who in his testimony deposed that the complainant was on leave for 20 days in the month of October and November, 1988. He did

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not get any salary for this period. He met the accused-appellant who was Dealing Assistant on 31.01.1999 and asked him that why his salary was deducted. The accused-appellant demanded Rs.2,000/- as bribe from him. The complainant reached to the office of C.B.I. and gave a complaint to the S.P. He proved the complaint given by him in the C.B.I. office, which was marked as Exh. Ka-2. S.P. C.B.I. introduced him to Sri Jayant Kashmiri and told him that Jayant Kashmini would investigate his case. Jayant Kashmiri called Satish Srivastava from Insurance Company and introduced the complainant to him. Jayant Kashmiri gave him a tape recorder and sent him and Satish Srivastava to D.R.M. Office with a direction that the complainant should record conversation between him and the accused-appellant in tape recorder. On the same day i.e. 13.01.1999 at around 2:15 to 2:30 P.W.-2 went with Satish Srivastava to the office of the accused-appellant. The accused-appellant demanded Rs. 2000/-, which was recorded in the tape recorder. On demanding the bribe, the witness said that as he had received only one day's salary how he would give Rs.2,000/- to the accusedappellant. When the witness said that he would not be able to pay Rs.2,000/-, then the accused-appellant said that he should pay Rs.2,000/- in two installments of Rs.1,000/- each. It was deposed that thereafter, he and Satish Srivastava came back to the C.B.I. office and gave the cassette and recorder to Jayant Kashmiri. Jayant Kashmiri heard the conversation, which was recorded and he sealed the cassette and got the signatures of the witnesses and others on the envelope.

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20. P.W.-3, Satish Kumar Srivastava who was posted as Stenographer, National Insurance Company, Regional Office, Hazratganj, Lucknow, had deposed that on 13.01.1999 he got instructions from Sri A.K. Verma, A.O. Vigilance Officer to reach C.B.I. Office, Hazratganj where he reached around 3-3:30 P.M. In C.B.I. office, he met Jayant Kashmiri, the complainant and Kapil Nath Rastogi. C.B.I. officers introduced him to the complainant and Kapil Nath Rastogi. He was told about the complaint of Sri Ram Kumar (P.W.-2) and he was given the complaint (Exh Ka-2) for reading. To verify the complaint, the witness was sent along with the complainant to D.R.M. Office where Subhash Chandra was posted. Before leaving for D.R.M. Office they were given a tape recorder and empty cassette, which was demonstrated to them. They were instructed that after reaching D.R.M. Office, tape recorder should be put on and after conversation would get over, the Tape Recorder was to be stopped. This witness gave the testimony to the effect that when they reached to the office of the accused-appellant, the complainant asked the accused-appellant regarding his payment of salary for the leave. The accused-appellant asked him that whether he had brought money or

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not, on which the complainant explained his poverty and said that he would arrange some money in 2-3 days on which the accused-appellant said that Rs.1,000/- should be given first and rest of the amount should be given after the complainant would receive his the salary. Thereafter, they came back to the C.B.I. office. On reaching back to the office, the tape was played in which conversation between the accused-appellant and the complainant was recorded. The complainant after looking at the material M.Exh-2 said that there were his signatures on it.

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21. P.W.-4, Sri Rajesh Kumar Shukla, Senior Clerk, Senior Section Engineer, Loco N.R., Lucknow, had deposed that he was posted at the above mentioned post since 1995 and was allowed the work of preparing Absentee statement, compilation of leave application, sick certificate and fitness certificate of the employees. He had proved D26 (Ext. Ka-18) absentee statement, which bears the name of complainant i.e Ram Kumar-IV Diesel Asstt. at serial no. 35. Further, he had deposed about preparation of D-27 and D-28, D-29 (Ex Ka-19, Ka-20 & Ka21). He also said that in absentee statement besides duty chart, there was sick certificate of the complainant. He proved the sick certificate of the complainant for 10 days from 16.10.1998 which was marked as Material Exh. Ka 20. He also proved fitness certificate from 23.03.1998 to 24.04.1998 for which sick certificate for 10 days from 23.03.1998 was issued by DMO, Alambagh ,which was marked as Material Exh 21 and 22.

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22. P.W.-5 Ramesh Chandra Bhatia, the then Controller, had deposed on oath that the complainant, Ram Kumar-IV had worked under his subordination and his leave record was being maintained in Loco shed,, Alambagh. He had further explained the procedure regarding maintenance of leave of the concerned employee and the statement of their absence from the work. He had proved Ext Ka-37 in his oral testimony.

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P.W.-6, Sri Rajiv Srivastava, the then Senior Divisional Medical Officer, Loco shed, Alambagh, Lucknow, had deposed on oath that he was authorized to issue sick and fitness certificate of the Railway Employees and had proved Ext. Ka-16, Ka-20 & Ka-24 of Ram Kumar-IV

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P.W.-7 Suresh Chand Srivastava, the then APO (Bills) DRMNR/Lucknow, had stated in his oral testimony that his job was to forward the bills after duly checking to the Accounts Section for further process. He had identified D-25 as the charge memo (Exh Ka-25) which was forwarded to accused Subhash Chand

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Srivastava for further process. He also verified the signatures of accused on the aforesaid document.

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25. P.W.-8 Anup Kumar Srivastava, the then O.S.-I, Confidential Section, DRM/ NR/Lucknow, had deposed that the accused was posted in the Establishment during year 1997 and had also proved seizure memo Ext. Ka-27, Ka-28 & Ka-29

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26. P.W.-9 Ved Prakasn Tripathi, the then Head Clerk DRM/NR/Lucknow had stated in his oral testimony that his main duty was to prepare pay bills of the employees of Loco shed Alambagh. Lucknow. He had further explained the procedure regarding preparation of pay bills and the documents to be considered for the same. He had also attested the documents of Ext. Ka-25, Ka-25/1, Ka25/2, Ext. Ka-26, ka-26/1, Ka-26/2.

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27 . PW-10 Jayant Kashmiri, the then Inspector, CBI/ACB, Lucknow, had deposed in his oral testimony that on the basis of the complaint of the complainant Ram Kumar-IV, the RC was registered against the accused Subhash Chand Srivastava. He made a preliminary inquiry and finally lead the trap to catch hold of the accused red handed while demanding and accepting the bribe money. He had proved Ext. Ka-5, Ka-6, Ka-17, Ka-28, Ka-30 to Ka-33, Material Exhibit-3 to 5 & material exhibit-23

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28. PW-11 Sri B.S.Mshra, the Investigating Officer of the present case, who was entrusted with the investigation of this case vide order dated 15.1.1999 had proved Ext. Ka-27, Ka-29, Ka-34, Ka-35, Ka-36.

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29. The court has to consider that whether the prosecution has been able to prove demand and acceptance of the bribe by the accused-appellant from the complainant or not. Demand of bribe from the complainant had been substantiated by the testimony of the complainant P.W.-2 himself as well as Satish Srivastava, an independent witness (P.W.-3) who accompanied the complainant to the office of the accused-appellant on 13.01.1999, a day prior to the trap proceedings. On 13.01.1999 the complainant and P.W.-3 had gone to the office of the accused-appellant for verification of the allegation of demand of bribe by the accused-appellant. These two witnesses, i.e. P.W.-2 and P.W.-3 in their testimonies had proved the demand of Rs.2,000/- by the accused from the complainant, which was to be paid in two installments of Rs.1,000/- each.

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30. The prosecution case is for acceptance and recovery of bribe of Rs.1,000/-. The complainant and P.W.-3 had deposed in the court that bribe amount was put in the drawer as per the asking of the accused-appellant himself and same was recovered from the drawer of the office table of the accused-applicant in the

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presence of T.L.O. (P.W.10) by other independent witness, Kapil Nath Rastogi who was, however, not produced by the C.B.I. during trial. Testimony of P.W.-3 had remained unshaken in respect of asking the complainant to put Rs.1,000/- in the drawer of the accused-appellant’s office table, and the complainant put the bribe of Rs.1,000/- in the drawer of the accused-appellant, which was recovered from the drawer itself in the presence of the witnesses.

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31. Submission of Sri Anurag Shukla, learned counsel appearing for the accusedappellant that the accused-appellant had nothing to do with the alleged leave account or payment of salary of the complainant and, therefore, there was no question for any demand of bribe from the complainant and the accused-appellant was not in a position to do any favour to the complainant as his leave account was nil prior to the incident itself. This argument is in respect of the motive for demanding the bribe. Motive would become irrelevant if the prosecution had been able to prove demand and acceptance of the bribe from the complainant. Testimonies of P.W.-2, P.W.-3 and P.W.-10 would fully prove demand and acceptance of bribe of Rs.1,000/- which was recovered from the drawer of office table of the accused-appellant. Submission of Sri Anurag Shukla that testimony of P.W.-2 was not cogent and cannot said to be credible inasmuch as at one point of time, he said that he put the bribe amount in almirah and later on corrected the statement that he considered table as almirah and, therefore, such testimony cannot be said to be credible and trial court should not have placed reliance on such testimony. This minor discrepancy would not destroy the entire case of the prosecution regarding demand, acceptance and recovery of bribe. When the demand and acceptance have been proved and the amount was recovered from the drawer of the office table of the accused-appellant, this minor discrepancy would become irrelevant.

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32. Learned counsel appearing for the accused-appellant has submitted that statement of P.W.-3 in cross examination that as he was sitting across the table so he did not see the drawer in which bribe was kept and, therefore, said witness could not be treated as witness of acceptance and recovery of bribe, is also liable to be rejected.

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33. P.W.-3 had supported the prosecution case from the very beginning and mere one statement in the cross examination that he did not exactly view the drawer would not be enough to say that the prosecution could not prove the case regarding acceptance and recovery of bribe from the drawer of the accusedappellant.

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34. It is settled law that it is necessary to record a conviction under Section 7 and 13 of the PC Act, 1988 proper proof of demand and acceptance of illegal gratification by the accused public servant is necessary. It is also settled that mere possession and recovery of money without proof of demand by the accused does not constitute an offence under Section 7 and 13(2)/13(1)(d) of the PC Act, 1988 ( P. Satyanarayana Murthy vs District Inspector of Police, State of Andhra Pradesh and another, (2015) 10 SCC 152 )

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35. Term “demand” does not find place under PC Act, 1988 but it has virtually been inserted in the statute by interpretative process. Section 20 of the PC Act, 1988 derives certain statutory presumption of guilt. Section 7 has to be read in conjunction with Section 20 which reads as under:-

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“ 20. Presumption where public servant accepts gratification other than legal remuneration .—

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(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

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(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

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(3) Notwithstanding anything contained in sub-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.”

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36. Plain reading with the words of Section 20 of the PC Act, 1988 would mean that if it can be proved that a public servant has received gratification, Section 20 brings in statutory presumption that he has received the same with an illegal motive as laid down in Section 7 of the Act. This shifts the burden of proof to the accused who is required to prove that what has been received is a valuable consideration and not an illegal gratification.

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37. Constitution Bench in recent judgment in the case of Neeraj Dutta vs State : 2022 SCC OnLine SC 1724 has held that to constitute an offence under Sections 7 and 13(2)/13(1)(d) (i) and (ii) of the PC Act, 1988, if a bribe giver makes an offer to pay without there being any prior demand of the same by a public servant and public servant accepts and receives the bribe, it would be a case of acceptance under Section 7 of the PC Act, 1988. If public servant himself makes a demand and demand is accepted by bribe giver and bribe is paid by the bribe giver, it is a case of obtainment under Section 13(1)(d)(i) and 13(1)(d)(ii) of the Act.

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38. It has been held that if the foundational facts are proved, presumption of receipt of obtainment of illegal gratification would be made. If such a presumption of fact would be raised, it is subject to rebuttal by the accused, however, if the presumption is not rebutted, the offence gets proved as provided under Section 20 of the PC Act, 1988.

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39. In para 4 and 5 of the aforesaid judgment, ingredients to constitute an offence under Section 7 and 13(1)(d) of the PC Act, 1988 have been mentioned and the paras 4 and 5 of the said judgment are extracted hereunder:-

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“ 4. The following are the ingredients of Section 7 of the Act:

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i) the accused must be a public servant or expecting to be a public servant;

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ii) he should accept or obtain or agrees to accept or attempts to obtain from any person;

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iii) for himself or for any other person;

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iv) any gratification other than legal remuneration;

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v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour.

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5. Section 13(1)(d) of the Act has the following ingredients which have to be proved before bringing home the guilt of a public servant, namely, -

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(i) the accused must be a public servant;

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(ii) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.

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(iii) to make out an offence under Section 13(1)(d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward.

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(iv) an agreement to accept or an attempt to obtain does not fall within Section 13(1)(d).

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(vi) mere acceptance of any valuable thing or pecuniary advantage is not an offence under this provision.

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(vii) therefore, to make out an offence under this provision, there has to be actual obtainment.

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(viii) since the legislature has used two different expressions namely “obtains” or “accepts”, the difference between these two must be noted.”

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40. In para 74 of the said judgment, the law for establishing guilt of the accused/ public servant under Section 7 and 13(1)(d) has been summarized, which would read as under:-

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“ 74. What emerges from the aforesaid discussion is summarised as under:

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(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.

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(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.

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(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.

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(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:

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(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.

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(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.

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(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 inturn 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.

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(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.

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(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.

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(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.

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(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.”

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41. The Supreme Court has answered the reference that if in absence of evidence of the complainant (direct/primary/ oral/documentary evidence), it would be permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7, 13(2)/13(1)(d) of the Act based on other evidence adduced by the prosecution.

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42. Considering the evidence on the anvil of the law propounded by the Supreme Court, I am of the view that the prosecution has been able to prove the case of demand, acceptance and recovery of the bribe by the accused-appellant from the complainant. Thus, I find no merit and substance the present appeal, which is hereby dismissed. Bail bonds are cancelled and sureties are dischraged.

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43. The accused-appellant is directed to surrender before the trail court forthwith to undergo the sentence awarded by the learned trial court. Let the record of the trail court be transmitted back to the trial court.

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(Dinesh Kumar Singh, J.)

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Order Date 19.12.2022

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prateek

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(Application No.127255 of 2021)

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The application seeks taking additional evidence under Section 391 Cr.P.C.

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I find that there is no relation between the cases registered against the accusedappellant in two different police stations under different sections. Therefore, application for taking additional evidence under Section 391 Cr.P.C. is rejected .

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(Dinesh Kumar Singh, J.)

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Order Date 19.12.2022

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prateek

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Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

Subhansh Chand Srivastava v. State of U.P. through C.B.I./Acb/Lucknow

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Subhansh Chand Srivastava v. State of U.P. through C.B.I./Acb/Lucknow

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