Dr D Chandrashekhar Vs the State by

DR. D. CHANDRASHEKHAR, S/O SRI. DODDA SETTY, AGED ABOUT 55 YEARS, W/AS DEPUTY DIRECTOR, STATE INSTITUTE OF HEALTH & FAMILY WELFARE, MAGADI ROAD, BANGALORE - 560 023.

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…APPELLANT

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(BY SRI. C.H. JADHAV, SR. ADVOCATE

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SRI. P.N. NANJA REDDY, ADVOCATE)

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AND:

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Digitally signed by NANDINI B G Location: High Court of Karnataka

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THE STATE BY LOKAYUKTA POLICE, KARNATAKA LOKAYUKTA BANGALORE - 560 001.

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…RESPONDENT

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(BY SRI. B.S. PRASAD, SPL.PP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 29.12.2012 PASSED BY THE SPL. JUDGE, PREVENTION OF CORRUPTION ACT, BANGALORE URBAN DISTRICT, BANGALORE CITY IN SPL.C.C.NO.172/2006 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 7, 13(1)(D) P/U/S 13(2) OF PREVENTION OF CORRUPTION ACT, 1988. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 8 MONTHS (EIGHT MONTHS) AND PAY FINE OF RS.3,000/- (RUPEES THREE THOUSAND), IN

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DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR 3 MONTHS FOR THE OFFENCE P/U/S 7 OF PREVENTION OF CORRUPTION ACT. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 1 (ONE) YEAR AND PAY FINE OF RS.5,000/- (RUPEES FIVE THOUSAND ONLY), IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR 4 MONTHS FOR THE OFFENCE P/U/S 13(1)(D) R/W 13(2) OF PREVENTION OF CORRUPTION ACT. THE SUBSTANTIVE SENTENCES OF IMPRISONMENT SHALL RUN CONCURRENTLY. THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.

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THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL JUDGMENT

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The appellant being accused No.1 in Special CC No.172/2006 on the file of the learned Special Judge, Bangalore Urban District, Bangalore City, is impugning the judgment of conviction and order of sentence dated 29.12.2012, convicting him for the offences punishable under Section 7, 13(1)(d) R/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the PC Act') and sentencing to undergo rigorous imprisonment for a period of 8 months for the offence under Section 7 of the PC Act and to pay fine of Rs.3,000/-, to undergo rigorous imprisonment for One year for

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the offence under Section 13(1)(d) R/w Section 13(2) of the PC Act and to pay fine of Rs.5,000/- with default sentence.

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Brief facts of the case are that, PW4-Nagaraju filed the first information with Lokayuktha Police, Bengaluru against accused Nos.1 and 2 alleging that they being the Medical Officer and Health Inspector respectively working in Bruhat Bengaluru Mahanagara Palike (for short 'BBMP'), demanded illegal gratification of Rs.10,000/- per month to permit him to lift the garbage, even though he is a licensed holder to clear

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the garbage in Ward Nos. 80, 81 and 82 from hotel and other commercial units. It is stated that accused No.1 being the Medical Officer, was demanding Rs.8,000/- per month and accused No.2 being the Health Inspector, demanding Rs.2,000/- per month and they were insisting that unless their illegal demand is met, he is not entitled to clear the garbage. It

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is also stated that a letter was shown to the informant threatening that the police will be informed to seize his lorry

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bearing No. MOX 5588 and insisted for payment of bribe amount. Since he was not interested in paying any illegal gratification, he filed the first information on 03.12.2005 as per

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Ex.P25, requesting Lokayuktha Police to register the FIR and to initiate legal action.

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Lokayuktha police on the basis of Ex.P.25,

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registered the FIR as per Ex.P29 and conducted Pre-trap panchanama as per Ex.P7 in the presence of mahazar witnesses and currency notes totaling to Rs.10,000/- was entrusted to PW4 directing PW5-the shadow witness to accompany the informant, while he meet the accused.

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It is further contention of the prosecution that PW4

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being the informant, met accused Nos. 1 and 2 in their office on 03.12.2005 along with PW5-the shadow witness. Accused No.1 asked the shadow witness to go out of his office and scolded the complainant for bringing PW5 with him and also asked as to why he had not met him for four months. It is thereafter, the shadow witness gone out and accused No.1 demanded Rs.10,000/-, accepted the entrusted amount from the informant. It is stated that Rs.8,000/- was retained by accused No.1 and kept it in his table drawer and paid Rs.2,000/- to accused No.2. Immediately, the informant came out of the chamber of accused No.1, gave signal to the

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Investigating Officer. Investigating Officer along with certain pancha, came to the spot, introduced himself to accused Nos.1 and 2, conducted the procedure as explained in trappanchanama, drawn mahazar as per Ex.P22. The samples of hand wash of accused Nos.1 and 2 were collected and thereafter, the tainted currency notes were recovered from accused Nos.1 and 2. It is stated that the tainted currency notes i.e. Rs.8,000/- was recovered from the table drawer of accused No.1 and Rs.2,000/- from the shirt pocket of accused No.2.

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It is also the contention of the prosecution that the explanation by accused Nos.1 and 2 were obtained regarding the incident, which are produced as per Ex.P26 and 27. Thereafter, completed the procedure of trap. After investigation, the charge sheet came to be filed against accused Nos.1 and 2 for the above said offences.

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The Trial Court took cognizance of the offences and registered the Special CC and summoned accused Nos.1 and 2. The accused have appeared before the Trial Court and pleaded not guilty for the above said offences. The prosecution

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examined PWs.1 to 6, got marked Exs.P1 to 32 and MOs1 to 15 in support of its contention. Accused Nos.1 and 2 have denied all the incriminating materials available on record in their statement recorded under Section 313 of CrP.C. and examined DW1, got marked Exs.D1 to 3 in support of their defence. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of accused No.1 for the offence under Sections 7, 13(1)(d) R/w 13(2) of PC Act and accordingly, convicted and sentenced him as stated above, while acquitting accused No.2 by holding that the prosecution is not successful in proving his guilt beyond reasonable doubt. Being aggrieved by the same, accused No.1 is before this Court.

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Heard Sri. C.H.Jadhav, learned Senior Advocate for Sri.P.N.Nanja Reddy, learned Counsel for the appellant and Sri.B.S.Prasad, learned Special PP for the respondent-State. Perused the materials on record.

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In view of the rival contentions urged by learned

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counsel for both the parties, the point that would arise for my consideration is:

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“Whether the appellant-accused has made out any ground to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court and to acquit him for the charge leveled against him?

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My answer to the above point is in the 'negative' for the following:

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REASONS

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It is the contention of the prosecution that the informant-PW4 is a licensed contractor to clear the garbage in Ward Nos. 80, 81 and 82 within BBMP limits. Accused No.1 is the Medical Officer and accused No.2 is the Health Inspector working in BBMP. They were demanding Rs.10,000/- (i.e, Rs.8,000/- for accused No.1 and Rs.2,000/- for accused No.2) per month to permit the informant to collect the garbage as per the license. During 2012, since the accused demanded the bribe amount, the informant lodged the first information,

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criminal case was registered, pre-trap panchanama was drawn, which was followed by trap of accused Nos.1 and 2, recovery of the tainted amount, etc. Therefore, it is the contention of the prosecution that accused No.1 being the public servant, has demanded and accepted illegal gratification of Rs.8,000/- from PW4 to show the official favour i.e., permitting PW4 to collect the garbage, as per the license. Thereby, he has committed misconduct and is liable for conviction.

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In order to prove its contention, the prosecution examined PW1-the Sanctioning Authority, who accorded sanction to prosecute accused No.1, which is as per Ex.P1. Accused No.1 never disputes that he is a public servant working as Public Officer in BBMP. Learned counsel representing the appellant never disputed the validity of Ex.P1 on any count.

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PW2 is the Additional Chief Secretary, who accorded sanction to prosecute accused No.2, who is already acquitted. PW3 is the Pancha, who was present at the time of drawing entrustment panchanama, pre-trap mahazar, where the tainted amount smeared with phenolphthalein powder was entrusted to PW4-the informant. This witness has supported the case of the

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prosecution not only in respect of entrustment panchanama but also in respect of trap panchanama for having accompanied the Investigating Officer and observing the procedures adopted by the investigating officer, while recovering the tainted amount as per MO11, from accused No.1 and getting his explanation as per ExP26.

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PW4 is the informant and the material witness examined by the prosecution. This witness has explained in detail during the chief-examination regarding his work of collecting the garbage in Ward Nos.80, 81, 82 and stated that during 2005, his lorry was obstructed by accused No.1 and he demanded bribe of Rs.10,000/- per month, to allow him to lift the garbage. Witness stated that he was doing the job of clearing the garbage for about 10 years and was not keen to pay any illegal gratification to accused No.1. Accordingly, he lodged the first information with the local police as per Ex.P25.

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The witness also speaks about pre-trap panchanama drawn after registering the FIR, by the Investigating Officer in the presence of PW3 and PW5 and entrusting the currency notes as per MOs11 and 13, after

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smearing the phenolphthalein powder and collecting his hand wash samples under the mahazar. Witness also states that he has gone to the office of accused No.1 and met him, who asked him whether he has brought the amount and accordingly, he paid Rs.10,000/-. Accused No.1 has asked the informant as to whether he has paid anything to accused No.2 and when he has answered in the negative, accused No.1 paid Rs.2,000/- to accused No.2 and he put the remaining amount of Rs.8,000/in his table drawer.

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Witness also stated that accused No.2 after receiving Rs.2,000/- from accused No.1, kept it in his shirt pocket. Witness states that after acceptance of illegal gratification by accused Nos.1 and 2, he came out and gave signal to the Investigating Officer as directed. The witness further states that he showed the Investigating Officer, who came with the panchas that accused No.1 had kept the tainted amount accepted by him in his table drawer and the same was subsequently recovered. Witness states that hand wash of accused No.1 was collected, photographs were taken, trappanchanama was drawn. During chief examination, since the

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witness has deviated a little from his earlier statement, the learned Special Prosecutor cross-examined him by treating him as partially hostile. During such cross-examination, Witness admitted the suggestions put by the prosecutor, but stated that he paid the entire amount of Rs.10,000/- to accused No.1, who in turn paid Rs.2,000/- to accused No.2.

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It is pertinent to note that the date of incident is 03.12.2005, but the witness was examined during August 2012, i.e., after lapse of about 7 years. The evidence of PW4 is to be appreciated with this fact in mind. The witness was very categorical in saying that it was accused No.1, who demanded Rs.10,000/- per month i.e., Rs.8,000/- for himself and Rs.2,000/- for accused No.2 and accordingly received the entire amount of Rs.10,000/- and paid Rs.2,000/- to accused No.2. He also states that it was accused No.1 after receiving the tainted amount, kept Rs.8,000/- in his table drawer, which was subsequently recovered by the Investigating Officer. Even though this witness was cross-examined by the learned counsel for accused No.1, it was only a formal cross examination, where there is admission that the informant was permitted to

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lift the garbage in few wards of BBMP and he used to lift the garbage by using two vehicles.

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Even though it is suggested to the witness that his permission to lift the garbages was cancelled, the same was categorically denied by the witness. Witness stated that he had filed three other complaints against the officials, which were later withdrawn at the instance of the police. It is pertinent to note that there is no specific denial of the fact regarding the demand and acceptance of illegal gratification from the informant. It is also not denied that the informant had met accused No.1 with the tainted amount and the same was found in his table drawer when the Investigating Officer conducted trap-panchanama.

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PW5 is the shadow witness, who has also supported the case of the prosecution by explaining in detail about pretrap and trap-panchanama and procedures that were followed at that time. Witness has stated that he accompanied PW4 while going to the chamber of accused No.1 and further accused No.1 scolded the complainant for having not met him for past four months. Further accused No.1 asked about the

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shadow witness as to why he has accompanied the informant. Later, he asked the shadow witness to go out of the chamber and accordingly, he came out. Within 10 minutes, the informant came out of the chamber and gave signal to the Investigating Officer, meaning thereby, accused No.1 had accepted the illegal gratification.

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The witness states that he along with Investigating Officer and the other pancha went inside the chamber of accused No.1, who conducted a trap-mahazar. The hand wash of accused No.1 turned into pink colour and the same was collected by the Investigating Officer. On asking accused No.1, he pulled the table drawer, where the tainted amount of Rs.8,000/- marked as Mo11 was kept, and the same was seized by the Investigating Officer. Witness also states that accused No.1 had given his explanation as per Ex.P26 and trap-mahazar was drawn and the photographs were also taken.

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This witness as well deviated a little during chiefexamination and therefore, he was treated partially hostile. When the prosecutor cross-examined him regarding the demand made by accused No.1, witness stated that the

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moment the complainant entered his chamber, accused No.1 started shouting at him as to why he had not met him for four months and in the meantime, the complainant informed him that he had brought the amount. This witness was also crossexamined by the learned counsel for the appellant. Witness admitted that accused No.1 scolded the informant that his license is cancelled. But strangely, there is no crossexamination to this witness about the material evidence given by him in chief-examination regarding accused No.1 asking him to go out of his chamber, the informant coming out of the chamber after about 10 minutes and showing the signal to the Investigating Officer. There is also no cross-examination regarding recovery of the tainted amount from the table drawer of accused No.1 at his instance and giving the explanation as per Ex.P.26.

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PW6 is the Investigating Officer, who spoke elaborately regarding registration of FIR, drawing of pre-trap panchanama, visiting the chamber of accused No.1, recovery of tainted amount from the table drawer of accused No.1, drawing

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of trap-panchanama, collecting of various samples and getting the explanation by accused No.1 in writing as per ExP.26.

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Even though the witness was cross-examined by the learned counsel for accused No.1, nothing has been elicited from him to disbelieve his version. It is suggested to the witness that the informant has lodged the complaint out of vengeance, which was denied by the witness.

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Ex.P26 is the explanation of accused No.1 at the time of trap-panchanma, the same was never disputed by accused No.1, as it is in his own handwriting. As per this explanation, the informant was given permission to collect the garbage from various wards and the informant was not following the procedure to collect the garbages. There were complaints against him and in spite of that the informant had never turned up to meet accused No.1. The explanation also states that he had written a letter to stop the activity of the informant, regarding collection of the garbage for the purpose of taking police help. But it is also stated that he never handed over the letter to the police at any point of time. It is only stated that he never demanded any money from the informant.

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But strangely there is no explanation as to how the tainted

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amount - MO11 was found in his table drawer.

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In the statement recorded under Section 313 of Cr.PC by the Trial Court, accused No.1 has denied the incriminating materials but never stepped into the witness box. However, examined DW1 on his behalf. As per the evidence of DW1, he is a LIC agent and had gone to meet accused No.1 in his office on the date of incident, to get a policy from him. Witness states that when he was inside the chamber, two persons came, accused No.1 asked one of them, as to why he was not to be seen for quite long time and asked the other person to go out of the chamber. Witness stated that accused No.1 shouted at the other person, who was inside, that he was irregular regarding collection of garbage. The other person requested accused No.1 to recall the cancellation of his permit. But accused No.1 told him that there were several complaints against him and therefore his permit is cancelled. Witness also

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states that the other person, who came to meet accused No.1 kept the money on his file and thereafter, again took it back

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and put in the table drawer of accused No.1. Later 4 or 5 persons came inside the chamber.

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During cross-examination by the learned Special PP, he denied that he is a planted witness to depose on behalf of the accused. To the question raised by the Court, witness stated that he never taken a policy from accused No.1. It is pertinent to note that even though it is elicited from DW1, that the permit pertaining to the informant was cancelled pursuant to several complaints and even though Ex.P28 is found in the office file, suggesting that accused No.1 had cancelled the permit to collect garbage, there is absolutely no cross examination in that regard to PW4, who was competent to speak about these facts.

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Ex.P28 produced along with the case file is dated 05.11.2005, signed by accused No.1. It is the contention of the learned Special Public Prosecutor that this is the letter kept by accused No.1 to threaten the informant that his permit is cancelled for the purpose of collecting illegal gratification from him. This explanation given by the learned SPP is more probable under the circumstance, as there was no cross-

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examination regarding this document to informant-PW4, nor it is stated that from the date of Ex.P28, the informant was not authorized to collect garbage on the basis of permit, which was granted earlier.

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Accused No.1 asserts that he indeed scolded the informant as to why he has not met since long. If at all Ex.P28 was given effect to and communicated to the informant, there was absolutely no reason as to why the informant should meet accused No.1. Even in the explanation Ex.P26, he refers to a

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letter addressed to the police for the purpose of getting the help, but voluntarily states that he had never handed over the said letter to the police. Accused No.1 never states in Ex.P26 that the permit given in favour of the informant for lifting the garbage was ever cancelled and the said order was communicated to the informant at any point of time.

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When admittedly, the informant-PW4 was a contractor, who was permitted to lift the garbage from Ward Nos.80, 81, 82 of BBMP for long period of time and when admittedly, accused No.1 working as a Medical Officer in BBMP was authorized to monitor lifting of garbage and further non

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cross-examination of PWs.4 and 5 regarding demand and acceptance of illegal gratification, as spoken to by them in the chief-examination, recovery of the tainted amount from the table drawer of accused No.1, coupled with the oral evidence of PWs3 to PW6 and the chemical analysis report as per Ex.P30 regarding the presence of phenolphthalein powder in the hand wash of accused No.1, speaks volumes regarding the case made out by the prosecution.

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If at all accused No.1 had never demanded and accepted the tainted amount, he could have cross-examined PWs 4 and 5 in that regard. There is absolutely no explanation as to how the tainted amount came in possession of accused No.1 and how his right and left hand wash tested positive for the presence of phenolphthalein powder. From the materials on record the prosecution is successful in proving that accused No.1 was a public servant, the informant was having the permit to collect garbage and therefore accused No.1 in order to show official favour of permitting the informant to collect garbage without any interruption, demanded and accepted the illegal gratification of Rs.8,000/and thereby, committed a

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misconduct punishable under Section 7, 13(1)(d) R/w 13(2) of the PC Act.

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Learned Senior Advocate for the appellant contended that there is discrepancy with regard to the amount of bribe demanded by accused Nos.1 and 2. In the complaint, the informant-PW4 states that accused No.1 had demanded Rs.8,000/-. But while deposing before the Court, he states that he demanded Rs.10,000/-.

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On going through the First Information as per Ex.P25, the informant has specifically stated that accused No.1 was demanding Rs.8,000/-, while accused No.2 Rs.2,000/- per month as illegal gratification. In the evidence, PW4 stated that accused No.1 received Rs.10,000/- and enquired him as to whether he had paid anything to accused No.2. When the informant answered in the negative, it was accused No.1, who paid Rs.2,000/- to accused No. 2 and kept the remaining amount of Rs.8,000/- in the table drawer. Therefore, the informant has very clearly explained the demand and acceptance of illegal gratification of Rs.8,000/- by accused No.1

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and it cannot be said that there is any discrepancy in that regard.

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It is also contended by the learned Senior Advocate for the appellant that the informant had not given any date and time of demand made by accused No.1. The informant stated that for several years, he is collecting the garbage as the permit holder and while collecting garbage, the accused have demanded bribe of Rs.8,000/- and Rs.2,000/- respectively per month. It is not as if accused No.1 had demanded illegal gratification only once but it was Rs.8,000/- fixed by accused No.1 per month to be paid by the informant to permit him to lift the garbage. Under such circumstances, non mentioning of the date and time of demand does not assume importance.

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It is pertinent to note that the informant specifically stated that accused No.1 was demanding Rs.8,000/- for himself and Rs.2,000/- for accused No.2. Similar is the evidence of PW4, where accused No.1 stated that he received Rs.10,000/and kept Rs.8,000/- for himself. In the absence of any denial regarding the demand and acceptance during crossexamination of PW4, the contention of the learned Senior

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Advocate for the appellant that there is no details of date and time of demand and acceptance of illegal gratification cannot be said to be fatal to the case of the prosecution.

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The further contention of the learned Senior Advocate for the appellant that demand for illegal gratification by accused No.1 is not proved beyond reasonable doubt or that the complainant is in the habit of giving complaints against the public servant one after the other and withdrawing some complaints and therefore his version cannot be believed also cannot be accepted in the absence of any effective crossexamination to PW4. Merely because complainant had filed complaints against others can not automatically lead to a presumption that the complaint is false.

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The counsel for the appellant has placed reliance on the decision of the Hon'ble Apex Court in ' State of Lokayuktha Police, Davanagere Vs. C.B.Nagaraj'¹ to contend that unless demand made by the accused is proved by the prosecution, he cannot be convicted. This position of law is very well settled and the same cannot be disputed. It is for the

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1 In Crl.A.No.1157/2015

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prosecution to prove the demand and acceptance of illegal gratification by producing oral and documentary evidence. As discussed above, PW4 in several words deposed before the Court that the accused being the public servant had demanded illegal gratification and accepted the tainted amount from him. When there is absolutely no cross-examination to PW4, it cannot be said that the prosecution has failed to prove either demand or acceptance of illegal gratification.

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Learned counsel has also placed reliance on the decision of the Hon'ble Apex Court in the case of ' Madan Lal Vs. State of Rajasthan '² , in support of his contention that in view of glaring inconsistencies regarding demand for illegal gratification, the accused is entitled for acquittal.

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I have gone through the decision rendered by the Hon'ble Apex Court. On facts, the Court formed an opinion that there are glaring inconsistencies insofar as amount of money demanded. It is also stated that during cross-examination of the material witness, he admitted that he does not remember the exact amount demanded by the accused. Under such

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circumstances, the Hon'ble Apex Court formed an opinion that there were discrepancies in the case made out by the prosecution, which give rise to a serious doubt regarding the demand made and under such circumstances, the decision was rendered. The facts and circumstances of the case before this court are entirely different as discussed above and hence I am of the opinion that none of these decisions are applicable to seek an acquittal.

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Learned SPl.P.P. has referred to the decision of the Hon'ble Apex Court in 'C.M.Sharma Vs. State of Andhra Pradesh'³ in support of his contention that when the evidence of PW4 was wholly reliable, it does not require any corroboration. The Hon'ble Apex Court held in Para 18 as under.

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"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

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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."

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The discussions held above discloses that PW4 who

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is the material witness, spoke about demand and acceptance but was never cross-examined on material particulars to disbelieve his version. Therefore, the version of PW4 is to be branded as wholly reliable as stated in paragraph 18. In the present case as well, the shadow witness even though accompanied PW4, the appellant had not allowed him to be present in the chamber and under such circumstances, it

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cannot be expected that the prosecution has to corroborate the evidence of PW4.

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It is relevant to refer to the decision of the Hon'ble Apex Court in ' Neeraj Dutta Vs. State (Govt. Of N.C.T of Delhi)', where the Hon’ble Apex Court discussed at length about the principle of law laid down in its earlier decisions and summarised the same in paragraph No.68 as under:

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"68. 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 Sections 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 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

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payment made which is received by the public servant, would be an offence of obtainment under Sections 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) 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.

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Section 20 does not apply to Sections 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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In view of the facts and circumstances and the settled position of law in the light of the principles summarized above, I am of the opinion that the Trial Court has appreciated the oral and documentary evidence placed before it in proper perspective to convict the appellant. I do not find any reason to interfere with the same.

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