M. Perumal S/O Muniswamy Vs State by Central Bureau of Investigation

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF JANUARY, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE V. SRISHANANDA

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CRL.A.NO.489/2011

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BETWEEN

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M. PERUMAL S/O MUNISWAMY AGED ABOUT 62 YEARS RETD, CHIEF MANAGER (PLANT MAINTENANCE), OVERHAUL DIVISION M/S. HINDUSTAN AERONAUTICS LTD., BANGALORE COMPLEX, BANGALORE R/AT NO 689, III MAIN, OMBR LAYOUT, DODDA BANASAWADI BANGALORE -560 043.

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...APPELLANT

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(BY SRI P.N.HEGDE, ADVOCATE)

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AND

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STATE BY CENTRAL BUREAU OF INVESTIGATION ACB, BANGALORE

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…RESPONDENT (BY SRI P.PRASANNA KUMAR, ADVOCATE) THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 20.04.2011 PASSED BY THE XLVII ADDL. CITY CIVIL AND SESSIONS AND SPECIAL JUDGE FOR CENTRAL BUREAU OF INVESTIGATION CASES, BANGALORE IN

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SPL.C.C.NO.116/10 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 7 AND 13(2) R/W 13(1)(d) OF PREVENTION OF CORRUPTION ACT.

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THIS APPEAL HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE V SRISHANANDA)

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Heard the arguments of Sri Parameshwar N. Hegde, learned counsel for the appellant and Sri P. Prasanna Kumar, learned counsel for the respondent.

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Appellant is the accused who suffered an order of conviction in Special (Corruption) Case No.116/2010, dated 20.04.2011, on the file of XLVII Additional City Civil and Sessions Judge and Special Judge for Central Bureau of Investigation cases, Bengaluru.

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Facts in brief which are utmost necessary for disposal of the appeal are as under:

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Appellant was working as Chief Manager (Plant and Maintenance), Overhaul Division, M/s. Hindustan Aeronautics Limited (‘HAL’ for short), Bengaluru Complex, Bengaluru.

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Complainant was allotted a work with regard to the painting of Mirage Hanger Floor and Ceiling at overhaul Division in M/s. HAL, vide agreement dated 16.10.2009 in a sum of Rs.14,11,494/-.

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Complainant being the proprietor of M/s. Annapoorneshwari Associates, Bangalore carried out the work and submitted a running accounts remittance bill on 21.12.2009 to the Chief Manager, (Plant and Maintenance), Overhaul Division, M/s HAL for payment. However there was delay in processing the bill and therefore the complainant met the accused and enquired about the pending bill on 30.12.2009 and sought for expediting the payment.

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At that juncture, accused said to have demanded bribe of Rs.10,000/- for expediting the payment

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in respect of the pending bill. Complainant being not willing to pay the bribe amount, submitted written complaint to the Central Bureau of Investigation (‘CBI’ for short) against the accused.

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Based on the complaint, Inspector of CBI., formed a raid team for the intended trap. He secured two independent pancha witnesses and on their arrival to the office of the CBI, the contents of the complaint was read over to the pancha witnesses and demonstrated the chemical reaction of phenolphthalein powder with Sodium Carbonate solution and they took the intended bribe money from the complainant and smeared the phenolphthalein powder and recorded the serial numbers of the currency notes and drafted the experimental mahazar and handed over the tainted currency to the hands of the complainant with a direction to hand over the same to the accused on demand and give a pre-designated signal to the rest of the raid party.

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One of the pancha witnesses namely, Shankar

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Narayan was directed to act as a shadow witness and he was directed to accompany the complainant and observe the demand and other proceedings while handing over the tainted currency to the hands of the accused. Thereafter, the entire raid party visited to the HAL. Accused was found near machine division, wherein complainant alone went and said to have handed over the tainted currency to the accused and gave a pre-designated signal.

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Shadow witness did not accompany the complainant and thereafter head of the raid party along with other sub staff and co-pancha arrived on the scene and enquired the accused and seized the tainted currency from the custody of the accused and colour test was conducted which resulted in positive and thereafter arrested the accused, obtained his explanation and produced him before the Special Judge.

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After thorough investigation a charge sheet came to be filed by the Investigating Officer against the

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accused for the offence punishable under Section 7, 13 (1)

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(d) r/w Section 13 (2) of the prevention of Corruption Act.

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Presence of the accused was secured and after compliance of Section 207 Cr.P.C., charges were framed for the aforesaid offences. Accused pleaded not guilty. Therefore, trial was held.

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In order to bring home the guilt of the accused, the prosecution in all examined seven witnesses, comprising of complainant, head of the raid party, pancha witnesses as P.Ws.1 to 7 and placed on record as many as twenty documents which were exhibited and marked as Exs.P.1 to P.20, besides marking twenty eight material objects as M.Os.1 to 28.

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On behalf of the defence, letter dated 19.12.2009 was marked as Ex.D.1 and three more documents exhibited which were marked as Exs.D.2 to D.4.

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Thereafter learned Trial Judge recorded the accused statement under Section 313 Cr.P.C., and subsequent thereto heard the parties and convicted the accused for the aforesaid offences and sentenced accused as under:

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“ORDER

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For the offence punishable under section 7 of the Prevention of Corruption Act, I hereby direct the accused to undergo rigorous imprisonment for a period of two years, and pay a fine of Rs.10,000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for a period of six months.

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For the offence punishable under section 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act, the accused is directed to undergo rigorous imprisonment for a period of one year and pay a fine of Rs.5,000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for a period of three months.

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Both sentences shall run concurrently.

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The period of detention, if any, undergone by the accused shall be given set off.”

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Being aggrieved by the same, accused is in the

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present appeal before this Court on the following grounds:

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“1. The order of conviction and sentences passed by the court below is against law, procedure, facts and probabilities of the case.

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2. The court below erred in holding that the appellant is guilty of the offence punishable under sections 7, 13(2) r/w 13(1)(d) of prevention of Corruption Act, 1988 and in awarding the sentences as stated supra

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3. The court below has erred in believing the uncorroborated versions of prosecution witnesses.

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4. The court below has made an apparent error in overlooking the major discrepancies occurred in the evidence of the witnesses, which disprove the prosecution case and against the appellant or at least it doubtful.

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5. The learned Trial judge failed to understand the ingredients of Sections for which the appellant has been found guilty and wrongly came to the conclusion that, the evidence brought on record is sufficient to hold that the appellant has committed the offence as stated supra.

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6. Case of the prosecution is that, the accused being a public servant working as Chief Manager (Plant Maintenance) Overhaul Division at HAL, Bangalore, on 31/12/2009 demanded and accepted illegal gratification of Rs.10,000/-

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from PW.1 S.Girish Kumar for showing official favour to him i.e. for passing the pending bill of the complainant etc. This case of the prosecution falsify from the fact that, the alleged date of trap is on 31/12/2009. The work of the accused was already completed, bill along with the measurement book were already sent to the civil department on 28/12/2009 itself for further processing. Hence as on the date of alleged trap, there was no official favour to be shown by this appellant. This important aspect has not at all been considered by the learned trial judge.

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7. Demand and acceptance are the main ingredients to be fulfilled in a case like nature. In the case on hand the aforesaid ingredients have not been fulfilled. In the complaint alleged time, place and purpose of demand are not detailed and there is discrepancy in the evidence of prosecution witnesses regarding the prior demand and therefore the Learned Trial Judge ought to have rejected the evidence of the prosecution and acquitted the accused.

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8. The documents Ex. D1 to D4 produced by the accused clearly shows that, the complainant is an influential person and by hook or crook he had decided to fix this appellant in the case. Though the accused placed aforesaid materials on record to substantiate his defence, the Hon'ble trial court not extended the benefit of doubting favour of the accused, which resulted in miscarriage of justice

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9. The evidence of PW-2 Shankarnarayan, the shadow witness in the case on hand clearly shows that, he did not heard the conversation

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between the complainant and PW-1. The said fact clearly shows that, the alleged trap did not laid as per the procedure ]

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10. It is admitted by PW-1 that, C.B.I took back the money from the accused, then prepared some solution after that, the accused was asked to dip his hand into the said solution and the said solution changed its colour. This test said to have been conducted is not in accordance with law and procedure.

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11. The evidence of prosecution is not sufficient to prove the earlier demand and the consequent acceptance of the alleged bribe. The Learned Trial Judge ought to have held that, the prosecution has not placed quality evidence on record to convict the accused and ought to have extended the benefit of doubt in favour of the accused.

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12. The Learned Trial Judge ought to have acquitted the appellant/accused since the prosecution has failed to prove the origin of the case, so also the motive.

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13. The Hon'ble Trial Court ought to have held that, the prosecution has failed to prove the case beyond reasonable doubts and he ought not to have to convict the appellant, which is apparently erroneous.

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14. Valid sanction is condition precedent in a case like nature. In the case on hand there is no proper application of mind by applied by the sanctioning authority in issuing Ex.P14 sanction order, which has been elucidated in the cross examination of PW-6.

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15. The Hon'ble Trial Court wrongly brushed aside the major contradictions, which are trivial in nature.

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16. The sentence imposed is too harsh and reappreciation of entire evidence is absolutely required to prevent the abuse of process of law.

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17. Even otherwise the order of conviction and sentences are illegal, unjust, improper and reappreciation of entire evidence is absolutely required to prevent the abuse of process of law.

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18. The appellant reserves his right to raise all other grounds at the time of hearing of the matter.

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19. The sentence imposed is too harsh.

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20. The appeal is in time.”

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Sri Parameshwar N. Hegde, learned counsel for the appellant vehemently contended that the judgment of the learned Special Judge runs contrary to the documentary evidence on record and as such, it needs to be set aside.

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He further pointed out that admittedly the bill came to be submitted by the complainant on 21.12.2009 and the material on record would disclose that the same

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has reached the table of the appellant. Noticing the fact that the work is not completed in toto as per the work order, the appellant had made an endorsement to release 75% of the bill amount which is much before the alleged trap and as such, there was no work pending with the appellant so as to demand the illegal gratification and alleged trap is a motivated trap and thus, sought for setting aside the impugned judgment.

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He further pointed out that admittedly, complainant being the son of a union leader of HAL was awarded the contract work of painting and other ancillary work worth Rs.14,11,494/- which has not been carried out by the complainant, an order to meet the target deadline of the tender conditions, had hurriedly submitted the bill and on 21.12.2009 which has been rightly appraised by the appellant and ordered to release 75% of the bill. Therefore, the alleged demand and acceptance is artificial in the case on hand which has not been properly appreciated by the learned Trial Judge while passing the

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order of conviction and thus sought for dismissal of the appeal.

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He also pointed out that admission obtained in the cross-examination of complainant who is examined as P.W.1, to the effect that the appellant never demanded bribe for processing earlier bills (20 in numbers) of the complainant to the bill in question and he has not demanded bribe amount from any other contractor is a relevant factor while appreciating the case on hand which has been not considered in proper perspective manner by the learned Trial Judge in the impugned order resulting in miscarriage of justice and sought for allowing the appeal.

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In support of his arguments he places reliance on the following judgments wherein it has been held as under:

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I. “Meena (Smt) W/o Balwant Hemke v. State of Maharashtra, (2000) 5 SCC 21,

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9. The essential ingredients to be established to indict a person of an offence under Section 5(1)(d) of the Act are that he should have been a public servant; that he should have used corrupt or illegal

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means or otherwise abused his position as such public servant, and that he should have obtained a valuable thing or pecuniary advantage for himself or any other person. Likewise, Section 161 IPC requires that the person accepting the gratification should be a public servant; that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and the accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.

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11. The learned Judge in the High Court seems to have mechanically affixed his approval to the findings recorded by the trial Judge by profusely extracting such findings. Mere recovery of the currency note of Rs 20 denomination, and that too lying on the pad on the table, by itself cannot be held to be proper or sufficient proof of the acceptance of the bribe, in the peculiar circumstances of this case which lend also credence to the case of the appellant that it fell on the table in the process of the appellant pushing it away with her hands when attempted to be thrust into her hands by PW 1. The results of phenolphthalein test, viewed in the context that the appellant could have also come into contact with the currency note when she pushed it away with her hands cannot by itself be considered to be of any relevance to prove that the appellant really accepted the bribe amount.

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With such perfunctory nature of materials and the prevaricating type of evidence of PW 1 and PW 3, who seem to have a strong prejudice against the appellant, it would be not only unsafe but dangerous to rest conviction upon their testimony. PW 1, if really was keen on getting the copy of the record urgently, could have made an urgent application to have them delivered within 3 days instead of making an ordinary application and going on such an errand, which makes it even reasonable to assume that the trio of PW 1, PW 3 and Jagdish Bokade were attempting to weave a web around the appellant to somehow get her into trouble and victimise her.

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II. P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another, State of Andhra Pradesh and another, (2015) 10 Supreme Court Cases 152

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11 . The learned counsel for the respondents sought to distinguish the decision rendered in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] contending that in the face of persuasive evidence of demand on record, the same is of no avail to the appellant.

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25. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i) and (ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) and (ii) of the Act, thus, had been to underscore the

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indispensability of the proof of demand of illegal gratification.

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26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam [(2013) 12 SCC 406 : (2014) 1 SCC (Cri) 677] had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.

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27. The materials on record when judged on the touchstone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly unsafe to sustain the conviction of the appellant under Sections 13(1)(d)(i) and (ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order [P. Satyanarayana v. State of A.P., Criminal Appeal No. 262 of 2002, order dated 25-4-2008 (AP)] of the High Court is hereby set aside. The appellant is on bail. His bail bond stands discharged. Original record be sent back immediately.

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III. Krishan Chander v. State of Delhi, (2016) 3 SCC 108

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35. It is well-settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] , A. Subair [A. Subair v. State of Kerala, (2009) 6 SCC 587 : (2009) 3 SCC (Cri) 85] and P. Satyanarayana Murthy [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] upon which reliance is rightly placed by the learned Senior Counsel on behalf of the appellant.

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36. The relevant para 7 from B. Jayaraj case [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] reads thus: (SCC p. 58)

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“7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] .”

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(emphasis supplied)

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37. In P. Satyanarayana Murthy [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] , it was held by this Court as under: (SCC p. 159, paras 21-23)

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“21. In State of Kerala v. C.P. Rao [State of Kerala v. C.P. Rao, (2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] , this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in the absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

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22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7

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and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasised, could follow only if there was proof of demand. Axiomatically, it was held that in the absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

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23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.”

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(emphasis supplied)

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IV. Panalal Damoda Rathi v. State

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of Maharashtra, (1979) 4 SCC 526

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8. There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Penal Code, 1860 making the person who offers bribe guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in

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material particulars connecting the accused with the crime has to be insisted upon. It has to be borne in mind that the marked notes were recovered from the possession of the second accused and not the appellant. It is the case of the prosecution that the marked notes were paid to the second accused for the purpose of being handed over to the appellant. The evidence of the complainant regarding the conversation between him and the accused has been set out earlier. As the entire case of the prosecution depends upon the acceptance of the evidence relating to the conversation between the complainant and the appellant during which the appellant demanded the money and directed payment to the second accused which was accepted by the complainant, we will have to see whether this part of the evidence of complainant has been corroborated. The prosecution relies on the testimony of PW 3, the panch witness, as corroborating the evidence of the complainant on this aspect. It may be reiterated that according to the complainant when he asked the appellant to relieve him from the case and to see that he was given a lesser sentence, the appellant asked him if he had brought the money and the complainant told him that he had and the appellant asked the complainant to pay the money to Dalvi, the second accused, and asked the second accused to receive the money from the complainant. On this aspect the evidence of PW 3 is as follows:

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“They saw the appellant coming out of the court hall and the complainant informed them that he was the Police Prosecutor. Then there was a talk between the complainant and the appellant in the verandah. The witness was at a distance of 3 to 4

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feet from them and was in a position to overhear the conversation. According to the witness he heard the appellant asking the complainant ‘Have you come’, the complainant then said ‘Yes’. The witness further heard the appellant saying that he would see that heavy punishment is not inflicted and the case as it is, was difficult. The complainant had then asked the appellant whether his work will be achieved. The appellant assured him in the affirmative. The appellant told the complainant to give what was to be given to the second accused.”

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V. State of Punjab v. Madan Mohan Lal Verma, (2013) 14 SCC 153

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10 . It is a settled legal proposition that in exceptional circumstances, the appellate court for compelling reasons should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e. if the conclusions arrived at by the court below are contrary to the evidence on record; or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice; or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence. (Vide Abrar v. State of U.P. [(2011) 2 SCC 750 : (2011) 2 SCC (Cri) 702] , Rukia Begum v. State of Karnataka [(2011) 4 SCC 779 : (2011) 2 SCC (Cri) 488 : AIR 2011 SC 1585]

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and State of M.P. v. Dal Singh [(2013) 14 SCC 159 : AIR 2013 SC 2059] .)

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11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash

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Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] , T. Subramanian v. State of T.N. [(2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136] .)

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VI. Raghbir Singh v. State of Punjab, (1976) 1 SCC 145

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5. In the first place, it appears clearly from the evidence that the appellant had nothing to do with the grant of exemption from payment of passenger or goods tax. The appellant was, at the material time, Passenger and Goods Tax Clerk II and, according to the evidence of Harmohan Singh, who was Passenger and Goods Tax Clerk I, the order of allocation of work made by the Excise and Taxation Officer assigned various duties to Passenger and Goods Tax Clerk II, but these did not include processing of application for exemption from payment of passenger or goods tax. The detection and recovery of passenger and goods tax was undoubtedly one of the duties entrusted to Passenger and Goods Tax Clerk II, but not the handling of applications for exemption. This was also made clear by Kashmir Singh who was an establishment clerk in the Excise and Taxation Office. Kashmir Singh stated that “the Passenger and Goods Tax Clerk has no concern with the exemption cases and the same are dealt with by the Taxation Inspector” and he added that the release of attached property is also effected on the basis of the report of the Taxation Inspector and “the Passenger and Goods Tax Clerk has nothing to

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do with it”. It would, therefore, be seen that the appellant was not in charge of applications for exemption which were dealt with by the Taxation Inspector. It is true that so far as the detection and recovery of goods tax was concerned, it was within the charge of the appellant, but nothing remained to be done on that count at the material time when the bribe was demanded and paid, since the truck was already attached by Taxation Inspector Brar on July 12, 1968. The only issue which was then being pressed by Jagdish Raj was that relating to exemption from payment of goods tax and so far as that issue was concerned, the appellant had nothing to do with it. There was, therefore, clearly no motivation for Jagdish Raj to give bribe to the appellant for obtaining grant of exemption. This circumstance weakens the foundation on which the edifice of the prosecution story rests and introduces an element of infirmity in it.

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6. But more than anything else, the evidence of Taxation Inspector Sharma makes a serious inroad in the prosecution case. The evidence of Sharma shows that it was only on August 1, 1968 that Jagdish Raj made an application for exemption from payment of goods tax supported by an affidavit and a certificate of exemption of token tax granted by the Licensing Officer. Now, obviously no exemption from payment of goods tax could be granted to Jagdish Raj until he made an application supported by a certificate of exemption of token tax obtained from the Licensing Officer. The certificate of exemption of token tax issued by the Licensing Officer would show that the truck was not plied during the period for which the certificate was granted and the registration certificate of the truck was lying deposited in the office of the Registration

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Authority. That would be prima facie proof that the truck did not carry any goods for hire and was, therefore, not liable to payment of goods tax for the period for which the certificate of exemption of token tax was granted. It appears from the record that an order for issue of certificate of exemption of token tax was made by the Licensing Officer on July 25, 1968 and pursuant to the order, the certificate must have been issued to Jagdish Raj a few days later and it was on August 1, 1968 that Jagdish Raj made the application for exemption from payment of goods tax, supported by this certificate. It is difficult to see how in these circumstances, when the application for exemption supported by the certificate of exemption of token tax was not made until August 1, 1968 any question of demanding or giving bribe could arise on July 29 or 30, 1968. If an application for exemption were already made supported by the certificate, one can understand, deplorable though it may be, that the clerk in charge of dealing with such application may demand bribe for expediting the disposal of the application or making a favourable noting on it. But one fails to see how there could be any question of demand or payment of bribe before such application was made, when, manifestly, nothing could be done in the matter of granting exemption without such application. It may be noted that even according to the evidence of Jagdish Raj, Taxation Inspector Brar stated to him on July 27, 1968 that it would not be possible for him to do anything for Jagdish Raj until Jagdish Raj produced the certificate of exemption of token tax from the Licensing Officer and that was done by Jagdish Raj only on August 1, 1968. The incident of demand of bribe by the appellant alleged to have

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taken place on July 29 and 30, 1968 was, therefore, clearly premature and improbable.

¶137

7. Then again the evidence of Sharma shows that there was redistribution of work between the two taxation inspectors, namely, Brar and Sharma on July 15 or 16, 1968 and under this redistribution of work, the case of Jagdish Raj came to be assigned to Sharma. It is, therefore, quite improbable that on July 29 and 30, 1968 the appellant would demand a bribe of Rs 400 for Brar who had no longer anything to do with the file of Jagdish Raj. In fact, Sharma stated in his evidence that at about 10 a.m. on July 31, 1968, when he went to the room of Excise and Taxation Officer on being summoned by him, he had to pass through the room in which the appellant was sitting and at that time he saw Jagdish Raj in that room with the appellant. Sharma heard the appellant telling Jagdish Raj that Brar would no longer be attending to the work of Jagdish Raj as the file had been entrusted to Sharma. Sharma then inquired from the appellant as to what was the total amount of arrears of tax due from Jagdish Raj and the appellant gave the figure to Sharma after looking into the file. The appellant inquired from Sharma as to what should be done, whereupon, Sharma stated that half the amount of arrears should be realised from Jagdish Raj and so far as the other half was concerned, orders of the Excise and Taxation Officer should be obtained for realising the same in instalments. Sharma also stated in his evidence that when he again passed through the room occupied by the appellant on his way back from the room of the Excise and Taxation Officer to his own room, he saw Jagdish Raj still sitting with the appellant. Jagdish Raj was entreating the

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appellant to get an order passed regarding the payment of arrears of tax by instalments, but the appellant told him that he could not do anything in the matter and that he should approach the Excise and Taxation Officer or Sharma. Presumably, on this date, Jagdish Raj was not aware that an order had already been made on July 25, 1968 for issue of certificate of exemption of token tax and he was, therefore, anxious that until he succeeded in obtaining such certificate, he should not be pressed into making immediate payment of arrears of tax. This evidence clearly shows that the file of Jagdish Raj had been transferred to Sharma and the appellant was aware of it and he informed Jagdish Raj accordingly in so many terms. The importance of this evidence cannot be over-exaggerated, particularly since Sharma was a witness examined on behalf of the prosecution and this incident was narrated by him in his examination-in-chief. It cannot lie in the mouth of the prosecution to disown this evidence given by Sharma. If this evidence is true, as it must be taken to be — and it must be said in fairness to the Counsel on behalf of the State that nothing was urged against it — it is impossible to accept the prosecution story that the appellant demanded bribe of Rs 400 for Brar or Rs 50 for himself or that Jagdish Raj agreed to pay the same. This evidence, in our opinion, completely destroys the foundation of the prosecution case and knocks the bottom out of it. This evidence also falsifies the statement of Jagdish Raj that he did not see the appellant in the morning of July 31, 1968 and it was only at 1.30 p.m. that with the raiding party he went for the first time on that day to the office of the appellant, Jagdish Raj is completely belied by this evidence on an important part of the prosecution case.

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8. The prosecution case also suffers from another serious infirmity and it is that it rests entirely on the evidence of witnesses who are either interested witnesses or police witnesses. Jagdish Raj was clearly an interested witness because he was concerned in laying the trap for the appellant. Arjun Das was also an interested witness as he was a relative of Jagdish Raj. Jagdish Raj admitted in his evidence that Arjun Das was his relative and so did Arjun Das. It is a little interesting to know that Arjun Das was not secured as a witness to the raid by Inspector Hardas Singh. He was picked up by Jagdish Raj when he was going to meet his sister in Putlighar and taken to the Special Enquiry Agency. His evidence was that he had taken leave on that day from his work as he wanted to meet his sister. But curiously enough, he allowed himself to be persuaded to go as a witness of the raid and even after the raid was over at about 3 p.m. he did not go to meet his sister in Putlighar. It appears to us extremely improbable that Arjun Das was really going to meet his sister when he was diverted by Jagdish Raj and taken as a member of the raiding party. If that was the mission for which he had taken leave, he would not have gone with Jagdish Raj and even if he did, he would have gone to meet his sister after the raid was over. It seems to us that Arjun Das had taken leave for the purpose of assisting Jagdish Raj in arranging the raid and he was clearly and indubitably an interested witness. Now it is significant that the only two persons who witnessed the actual passing of bribe were Jagdish Raj and Arjun Das. Inspector Hardas Singh knew very well that Arjun Das was brought by Jagdish Raj, and presumably, he was connected with Jagdish Raj and could not, therefore, be regarded as an

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independent person, even so he did not care to secure an independent person, to act as a witness of the raid. In fact, one Mohan Lal had acted as a witness when Jagdish Raj gave information to Inspector Hardas Singh in regard to the demand for bribe made by the appellant and though he was an independent person, he was not taken as a witness by Inspector Hardas Singh when the latter went for the purpose of the raid. Instead, one Makhan, who was a sweeper in the whole-time employment of the police, was taken as a witness. But, even he was not sent along, with Jagdish Raj to witness the passing of the bribe. It is indeed difficult to see how Makhan could possibly be regarded as an independent witness. It is indeed a sad commentary on the functioning of the anticorruption department in this case that the only safeguard against false implication in the offence of bribery, which is provided by the presence of independent and respectable witnesses, was completely ignored and two witnesses were taken, one of whom was a relative of Jagdish Raj and the other, a sweeper in the whole-time employment of the police. We must take this opportunity of impressing on the officers functioning in the anticorruption department to insist on observing this safeguard as zealously and scrupulously as possible for the protection of public servants against whom a trap may have to be laid. They must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. We cannot, in the present case, rely on the evidence of Jagdish Raj and Arjun Das for the purpose of holding that a sum of Rs 50

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was paid by Jagdish Raj to the appellant by way of bribe.

¶146

VII. Rakesh Kapoor v. State of Himachal Pradesh, (2012) 13 SCC 552

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20. Coming to the next argument that there was absolutely no demand for bribe and in the absence of such claim by the accused duly established by the prosecution, the conviction cannot be sustained. In support of the above claim, the learned counsel for the appellant relied on the decision of this Court in Banarsi Dass v. State of Haryana [(2010) 4 SCC 450 : (2010) 2 SCC (Cri) 864] . It was an appeal under Article 136 of the Constitution of India filed against the judgment and order of conviction dated 20-11-2002 passed by the learned Single Judge of the High Court of Punjab and Haryana at Chandigarh. In that case, it was contended before this Court that there is no evidence to prove demand and voluntary acceptance of the alleged bribe so as to attract the offence under Section 5(2) of the Prevention of Corruption Act, 1947. The other contentions were also raised regarding merits with which we are not concerned. The accused was charged for the offence punishable under Section 5(2) of the 1947 Act as well as Section 161 (since repealed) IPC. In para 23, this Court held that: (Banarsi Dass case [(2010) 4 SCC 450 : (2010) 2 SCC (Cri) 864] , SCC p. 456)

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“23. To constitute an offence under Section 161 IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused.”

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It was further held that: (Banarsi Dass case [(2010) 4 SCC 450 : (2010) 2 SCC (Cri) 864] , SCC p. 456, para 23)

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“23. … Similarly in terms of Section 5(1)(d) of the Act, the demand and acceptance of the money for doing a favour in discharge of his official duties is sine qua non to the conviction of the accused.”

¶152

21. In para 25, this Court quoted the decision rendered in C.M. Girish Babu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and held that: (Banarsi Dass case [(2010) 4 SCC 450 : (2010) 2 SCC (Cri) 864] , SCC p. 457)

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“25. … mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance.”

¶154

In the same para (Banarsi Dass case [(2010) 4 SCC 450 : (2010) 2 SCC (Cri) 864] , SCC p. 457, para 25), a reference was also made to Suraj Mal v. State (Delhi Admn.) [(1979) 4 SCC 725 : 1980 SCC (Cri) 159] (SCC p. 727, para 2) wherein this Court took the view that mere recovery of tainted money from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. This Court further held that mere recovery by itself cannot prove the charge of the prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. After underlying the above principles, and noting that two prosecution witnesses turned hostile, while giving the benefit of doubt on technical ground to the accused, this Court set aside the judgment of the High Court and acquitted

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the accused of both the charges i.e. under Section 161 IPC and under Section 5(2) of the 1947 Act.

¶157

VIII. A. Subair v. State of Kerala, (2009) 6 SCC 587

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28. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.

¶159

29. The High Court drew presumption under Section 20 of the Act for charge under Section 7. Based on that, it was held that the prosecution has proved the offence punishable under Section 7 of the Act. Section 20 of the Act, 1988 reads thus:

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

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without consideration or for a consideration which he knows to be inadequate.

¶163

(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 subsections (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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Sub-section (3) is a “non obstante clause”. It provides that where the gratification is trivial and the court is of the opinion that no inference of corruption may fairly be drawn, it may decline to draw the presumption as referred to in subsections (1) and (2). In other words, the court is not bound to draw a presumption under Section 20 where the alleged gratification is too trivial.

¶166

31. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having

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considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt.

¶169

Per contra, Sri P. Prasanna Kumar, learned counsel representing the respondent – CBI supports the impugned judgment. He further contended that in the case on hand all ingredients required to establish the offence punishable under Section 7, 13 (1) (d) r/w Section 13 (2) of the prevention of Corruption Act has been established by the prosecution by placing cogent and convincing evidence on record.

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He also argued that mere admission of the complainant in his cross-examination that accused did not demand the bribe money for processing the earlier bills ipso facto would not result in an inference that the appellant has not demanded the bribe money in the case on hand.

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He further pointed out that the very fact that colour test stood positive shows that the appellant has handled the tainted currency and no proper explanation is forthcoming with regard to the colour test turning into the positive.

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He further argued that admittedly the bill submitted by the complainant was not paid as on the date of trap and as such, the case of the prosecution cannot be doubted and the appellant has misused his official position with an intention to process the bill demanding illegal gratification and therefore, impugned judgment needs no inference and sought for dismissal of the appeal.

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In support of his contentions, he placed on record following judgments wherein it has been held as under:

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I. Sita Soren v. Union of India, (2024) 5 SCC 629

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121. Section 7 of the Prevention of Corruption Act, 1988 reads as follows:

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“ 7. Offence relating to public servant being bribed .—Any public servant who—

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(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

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(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

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(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person,

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shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

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Explanation 1.—For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

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Illustration.—A public servant, S asks a person, P to give him an amount of five thousand rupees to process his routine ration card application on time. S is guilty of an offence under this section.

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Explanation 2.—For the purpose of this section—

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(i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;

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(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.”

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(emphasis supplied)

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122. Under Section 7 of the PC Act, the mere “obtaining”, “accepting” or “attempting” to obtain an undue advantage with the intention to act or forbear from acting in a certain way is sufficient to complete the offence. It is not necessary that the act for which the bribe is given be actually performed. The First Explanation to the provision further strengthens such an interpretation when it expressly states that the “obtaining, accepting, or attempting” to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by a public servant has not been improper. Therefore, the offence of a public servant being bribed is pegged to receiving or agreeing to receive the undue advantage and not the actual performance of the act for which the undue advantage is obtained.

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123. It is trite law that illustrations appended to a section are of value and relevance in construing the text of a statutory provision and they should not be readily rejected as repugnant to the section. [

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Justice G.P. Singh, Principles of Statutory Interpretation, 15th Edn. (2021), 136.] The illustration to the First Explanation aids us in construing the provision to mean that the offence of bribery crystallises on the exchange of the bribe and does not require the actual performance of the act. It provides a situation where “a public servant, S asks a person, P to give him an amount of five thousand rupees to process his routine ration card application on time. S is guilty of an offence under this section.” It is clear that regardless of whether S actually processes the ration card application on time, the offence of bribery is made out. Similarly, in the formulation of a legislator accepting a bribe, it does not matter whether she votes in the agreed direction or votes at all. At the point in time when she accepts the bribe, the offence of bribery is complete.

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124. Even prior to the amendment to the PC Act in 2017, Section 7 expressly delinked the offence of bribery from the actual performance of the act for which the undue advantage is received. The provision reads as follows:

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“ 7. Public servant taking gratification other than legal remuneration in respect of an official act .—Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any

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State Government or Parliament or the Legislature of any State or with any local authority, corporation or government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to seven years and shall also be liable to fine.

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Explanations.—(a)(c) * * *

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(d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.”

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(emphasis supplied)

¶201

125. The unamended text of Section 7 of the PC Act also indicates that the act of “accepting”, “obtaining”, “agreeing to accept” or “agreeing to obtain” illegal gratification is a sufficient condition. The act for which the bribe is given does not need to be actually performed. This was further clarified by Explanation (d) to the provision. In explaining the phrase “a motive or reward for doing”, it was made clear that the person receiving the gratification does not need to intend to or be in a position to do or not do the act or omission for which the motive/reward is received. 126. In Chaturdas Bhagwandas Patel v. State of Gujarat [Chaturdas Bhagwandas Patel v. State of Gujarat, (1976) 3 SCC 46 : 1976 SCC (Cri) 351] , a two-Judge Bench of this Court reiterated that to constitute the offence of bribery, a public servant using his official position to extract illegal

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gratification is a sufficient condition. It is not necessary in such a case for the court to consider whether the public servant intended to actually perform any official act of favour or disfavour. In the facts of the case, the public servant induced the complainant to give a bribe to get rid of a charge of abduction. It was later revealed that no complaint had even been registered against the complainant for the alleged abduction. However, the Court held that the mere demand and acceptance of the illegal gratification was sufficient, regardless of whether the recipient of the bribe performed the act for which the bribe was received.

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127. Recently, in Neeraj Dutta v. State (NCT of Delhi) [Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731 : (2023) 2 SCC (Cri) 352] a Constitution Bench listed out the constituent elements of the offence of bribery under Section 7 of the PC Act (as it stood before the amendment in 2017). B.V. Nagarathna, J. formulated the elements to constitute the offence : (SCC p. 749, para 5)

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“5. 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; and

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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.”

¶212

Consequently, the actual “doing or forbearing to do” the official act is not a constituent part of the offence. All that is required is that the illegal gratification should be obtained as a “motive or reward” for such an action or omission — whether it is actually carried out or not is irrelevant.

¶213

II. Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731

¶214

68. Distinguishing a presumption under Section 4(1) of the 1947 Act with a presumption under Section 114 of the Evidence Act, it was observed in Dhanvantrai Balwantrai Desai v. State of Maharashtra [Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR 1964 SC 575] (“Dhanvantrai Balwantrai Desai”) that a presumption under Section 114 of the Evidence Act is discretionary in nature inasmuch as it is open to the court to draw or not to draw a presumption as to the existence of one fact from the proof of another fact. This is unlike a presumption under Section 4(1) of the 1947 Act or Section 20 of the Act where the court has to draw such presumption, if a certain fact is proved, that is, where any illegal gratification has been received by an accused. In such a case the presumption that has to be drawn that the person received that thing as a motive of reward. Therefore, the court has no choice in the matter, once it is established that the accused has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to the

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accused to show that though that money was not due to him as a legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which is lawful. The burden resting on the accused in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words “unless the contrary is proved” which occur in this provision make it clear that the presumption has to be rebutted by “proof” and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material brought before it, the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.

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87. Therefore, this Court cautioned that even if a witness is treated as “hostile” and is crossexamined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the Judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared “hostile” does not result in an automatic rejection of his evidence. Even, the evidence of a “hostile witness” if it finds corroboration from the

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facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a “hostile witness” testimony if corroborated by other reliable evidence.

¶220

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

¶221

88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

¶222

88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

¶223

88.3. (c) Further, the fact In issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

¶224

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:

¶225

(i) if there is an offer to pay by the bribegiver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is

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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.

¶228

(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.

¶229

(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.

¶230

88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the

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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.

¶233

88.6. (f) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

¶234

88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.

¶235

88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.

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90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:

¶238

In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.

¶239

III. Vinod Kumar Garg v. State (NCT of Delhi) (2020) 2 SCC 88

¶240

17. In the case at hand, the condition precedent to drawing such a legal presumption that the accused has demanded and was paid the bribe money has been proved and established by the incriminating material on record. Thus, the presumption under Section 20 of the Act becomes applicable for the offence committed by the appellant under Section 7 of the Act. The appellant was found in possession of the bribe money and no reasonable explanation is forthcoming that may rebut the presumption. Further, the recovery of the money from the pocket of the appellant has also been proved without doubt. We, therefore, hold that money was demanded and accepted not as a legal remuneration but as a motive or reward to provide electricity connection to Nand Lal (PW 2) for the shed.

¶241

IV. Chaitanya Prakash Audichya v. CBI

¶242

(2015) 7 SCC 720

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13. We have gone through the record and considered the relevant material. The fact that PW 1 was awarded contracts by ONGC and that it was a mandatory requirement to have the requisite licence from the office of the Assistant Labour Commissioner is well established. Further the fact that PW 1 preferred applications, Exts. 31 and 32 for necessary licences is also established on record. According to PW 3, the applications were registered on 13-5-2003 and that the applications were in order. Furthermore, according to this witness such applications would normally be dealt within 2-3 days and that the applications were kept pending because of the instructions of the appellant himself. Though a feeble attempt was made to submit that there were interpolations in the applications, the assertion that the applications were complete and kept pending because of instructions of the appellant could not be controverted. We, therefore, accept that the applications were complete in all respects and as stated by PW 3 they were kept pending because of the instructions of the appellant. It is also part of the record that the site in question was inspected by the appellant on 295-2003 as the inspection notes Ext. 33 would disclose. The assertion on the part of PW 1 that he had an occasion to meet the appellant that day is well supported. Though it was denied that any meeting had taken place in the rest house where demand was made as alleged, the facts as they stand unfolded, fully substantiate the assertion made by PW 1.

¶245

14. The complaint, Ext. 34 preferred on 30-5-2003 itself disclosed that the money was demanded and that the complainant was asked to make the payment by 30-5-2003 itself. Given the assertions

¶246

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in the complaint, the submission that no preliminary investigation could be undertaken because of paucity of time is well founded. At the same time the incongruity in the timing when services of panch witnesses were sought for also pales into insignificance. It is true that the complaint did not state or suggest any time and place at which the complainant was supposed to fulfil the demand. Though in P. Parasurami Reddy v. State of A.P. [(2011) 12 SCC 294 : (2012) 1 SCC (Cri) 552] there are certain observations that there was no prior commitment fixing the time and place for receiving the bribe, the decision discloses that there were various other circumstances which weighed with this Court. In any case, the facts in the present case show otherwise.

¶248

15. It was asserted by the complainant in his examination that he was asked by the appellant to see him at his residence after the office hours. Further, when PW 1 and PW 2 went to the house of the appellant, the conversation which PW 1 had with the wife of the appellant clearly shows that the visit of PW 1 was quite expected. On this issue there was no effective cross-examination at all. It would therefore be inconsequential if no prior commitment regarding fixing of the time and place for receiving the bribe was mentioned in the complaint.

¶249

16. The other two cases cited by the appellant dealt with situations where the demand and acceptance were not fully established and despite that an attempt was made to rely on the presumption invocable under Section 20 of the Act. Such is not the case in the present matter. It is further well established that where misconduct is

¶250

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proved, the alleged enmity between the complainant and the delinquent officer is immaterial. (See B. Hanumantha Rao v. State of A.P. [1993 Supp (1) SCC 323 : 1993 SCC (Cri) 117] )

¶252

17. The other two cases cited by the appellant dealt with situations where the demand and acceptance were not fully established and despite that an attempt was made to rely on the presumption invocable under Section 20 of the Act. Such is not the case in the present matter. It is further well established that where misconduct is proved, the alleged enmity between the complainant and the delinquent officer is immaterial. (See B. Hanumantha Rao v. State of A.P. [1993 Supp (1) SCC 323 : 1993 SCC (Cri) 117] )

¶253

18. In the circumstances we are not persuaded to take a view different from the one which weighed with the courts below. Affirming the decisions taken by the High Court and the trial court, we dismiss the present appeal. The bail bonds stand cancelled and the appellant shall be taken in custody forthwith to undergo the sentence awarded to him.

¶254

V. State of Gujarat v. Navinbhai Chandrakant Joshi and others, (2018) 9 SCC 242

¶255

10. The High Court acquitted the accused on the ground that there was no recovery from Accused 1 J.D. Patel and that the demand by the accused persons has not been established by the prosecution. The High Court took the view that Accused 2 Navinbhai had no idea for what purpose the money was given to Accused 1 J.D. Patel by PW 1 and therefore, it cannot be said that Accused 2 Navinbhai had accepted the bribe amount upon

¶256

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demand to PW 1. The High Court was not right in brushing aside the evidence of PW 1 who has clearly stated that Accused 1 J.D. Patel demanded bribe of Rs 1000 and the same was settled for Rs 500 for expediting the matter for conversion of the plot for non-agricultural purpose. Recovery of the tainted currency notes from Accused 2 Navinbhai and the presence of anthracene powder in the right hand of Accused 1 J.D. Patel and the pocket of the shirt of Accused 2 Navinbhai clearly show that they acted in tandem in the demand and acceptance of the bribe amount. When the demand and acceptance of illegal gratification has been proved by the evidence of PWs 1 and 3, the High Court was not right in holding that the demand and acceptance was not proved. The findings of the trial court did not suffer from any infirmity and the High Court was not justified in setting aside the conviction of the accused.

¶258

11. So far as the presumption raised under Section 20 of the Act for the offence under Section 7 of the Act is concerned, it is settled law that the presumption raised under Section 20 of the Act is a rebuttable presumption, and that the burden placed on the accused for rebutting the presumption is one of preponderance of probabilities. In C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] , this Court held as under: (SCC p. 786, paras 21-22)

¶259

“21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. …

¶260

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22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.”

¶262

Since it is established that the accused was possessing the bribe money, it was for them to explain that how the bribe money has been received by them and if he fails to offer any satisfactory explanation, it will be presumed that he has accepted the bribe.

¶263

VI. State, Represented by Inspector of Police, Pudukottal T.N., vs. A. Parthiban, (2006) 11 SCC 473

¶264

8. Every acceptance of illegal gratification whether preceded by a demand or not, would be covered by Section 7 of the Act. But if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13(1)(d) of the Act. The act alleged against the respondent, of demanding and receiving illegal gratification constitutes an offence both under Section 7 and under Section 13(1)(d) of the Act. The offence being a single transaction, but falling under two different sections, the offender cannot be liable for double penalty. But the High Court committed an error in holding that a single act of receiving an illegal gratification, where there was demand and acceptance, cannot be an offence both under Section 7 and under Section 13(1)(d) of the Act. As the offence is one which falls under two different sections providing different punishments,

¶265

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the offender should not be punished with a more severe punishment than the court could award to the person for any one of the two offences. In this case, minimum punishment under Section 7 is six months and the minimum punishment under Section 13(1)(d) is one year. If an offence falls under both Sections 7 and 13(1)(d) and the court wants to award only the minimum punishment, then the punishment would be one year.

¶267

VII. C.M. Sharma v. State of Andhra Pradesh,

¶268

Through Inspector of Police, (2010) 15 SCC 1

¶269

18. Further, corroboration of evidence of a witness is required when his evidence is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorised in three categories viz. unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstance of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of bribe. As in the present case, a shadow witness did accompany the contractor but the appellant did not allow him to be present in the chamber. Acceptance of this submission in abstract will encourage the bribetaker to receive illegal gratification in privacy and then insist for corroboration in case of prosecution. Law cannot countenance such a situation.

¶270

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VIII. Neera Yadav v. Central Bureau of Investigation, (2017) 8 SCC 757

¶272

16. Section 13 of the PC Act in general lays down that if a public servant, by corrupt or illegal means or otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage, he would be guilty of “criminal misconduct”. Subsection (2) of Section 13 speaks of the punishment for such misconduct. Section 13(1)(d) read with Section 13(2) of the PC Act lays down the essentials and punishment respectively for the offence of “criminal misconduct” by a public servant. Section 13(1)(d) reads as under:

¶273

“ 13. Criminal misconduct by a public servant .—(1) A public servant is said to commit the offence of criminal misconduct—

¶274

***

¶275

(d) if he—

¶276

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

¶277

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

¶278

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or”

¶279

17. A perusal of the above provision makes it clear that if the elements of any of the three sub-clauses

¶280

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are met, the same would be sufficient to constitute an offence of “criminal misconduct” under Section 13(1)(d). Undoubtedly, all the three wings of clause (d) of Section 13(1) are independent, alternative and disjunctive. Thus, under Section 13(1)(d)(i), obtaining any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant in itself would amount to criminal misconduct. On the same reasoning “obtaining a valuable thing or pecuniary advantage” by abusing his official position as a public servant, either for himself or for any other person would amount to criminal misconduct.”

¶282

Sri P. Prasanna Kumar also placed on record the principles of law enunciated in the case of State of Karnataka vs. Chandrasha, reported in 2024 SCC OnLine SC 3469. The relevant paragraphs are culled out hereunder:

¶283

20. The main contention of the learned senior counsel for the respondent is that the bill was passed on 29.07.2009 and it was sent for preparation of cheque to P.W.4 on the same day itself and the cheque (Ex.P19) was also made ready on 30.07.2009 and hence, on the date of alleged trap i.e., on 05.08.2009, there was no work pending with the respondent and he did not demand or accept bribe from the complainant. However, the said cheque was not issued to the complainant and neither any intimation in this

¶284

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regard was sent to the school authorities, till 05.08.2009 nor was the complainant informed that the cheque was already ready. That apart, no plausible reason was adduced on the side of the respondent, as to why, it was retained in the office of the Sub Treasury without being issued to the party concerned. It is a common knowledge that when the bill was submitted to the office of Sub Treasury for sanction, only after issuance of the cheque to the concerned, the work will be treated as completed. In the instant case, no cheque was issued, and it was kept pending as on the date of trap. Therefore, the contention so made on the side of the respondent cannot be countenanced by us.

¶286

21. It is settled law that the two basic facts viz., ‘demand’ and ‘acceptance’ of gratification have been proved, the presumption under Section 20 can be invoked to the effect that the gratification was demanded and accepted as a motive or reward as contemplated under Section 7 of the Act. However, such presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the same. In the present case, the prosecution proved its case beyond reasonable doubt, in respect of the ‘demand’ and ‘acceptance’ of the bribe amount from the complainant and recovery of tainted currency notes from the possession of the respondent. The said operation is preceded by recording of the demand in the tape recorder. In such circumstances, the respondent has to rebut the presumption by disproving the case of the prosecution either in the crossexamination of the prosecution side witnesses or by adducing material evidence that the receipt of Rs. 2,000/- was not a bribe amount, but a legal fee

¶287

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or repayment of loan. However, he failed to do so and on the contrary, we find the prosecution to have proved the case beyond any doubt.

¶289

22. Though the respondent in his statement recorded under Section 313 Cr. P.C. as well as before the Lokayukta Police, stated that there were loan transactions between himself and the complainant; 8 to 10 days prior to the date of incident the complainant borrowed a hand loan of Rs. 2,000/- from the respondent; and when the respondent pressurized the complainant to return the loan amount, the present false case was registered against him, there was absolutely no evidence either in oral or documentary adduced to substantiate the same. It is an admitted fact that the complainant was working in a private aided school and the respondent was working as First Division Assistant in the Office of the Sub Treasury, Afzalpur. There was no material evidence produced to the effect that both were related closely to each other so as to grant a hand loan and to prove the grant of loan. In the absence of such material evidence produced, the plea so taken by the respondent, seems to be unbelievable. Therefore, it can safely be inferred that the respondent had received or accepted the currency notes on his own volition and the testimony of P.W.1 to P.W.5 including the testimony of P.W.10 and P.W.12 would go to show the demand, acceptance and recovery of the bribe amount from the possession of the respondent and the prosecution proved the charges framed against the respondent beyond reasonable doubt.

¶290

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23. In view of the aforesaid analysis, we find that the trial Court based on the oral and documentary evidence adduced by the parties, rightly found the respondent guilty of the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the Act and sentenced him for the same. However, the High Court by placing reliance on the decision of this Court in A. Subair's case (supra), held that since no work was pending with the respondent as on the date of trap, the ingredient to attract and complete the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Act was not met. The view so taken by the High Court is unsustainable as the decision of this Court in A. Subair's case (supra) did not support the view. It was a case where the complainant was not even examined and there were discrepancies in the evidence of the other witnesses. In the present case, we do not find such infirmities. Insofar as the reference to sub section (3) to Section 20 regarding the triviality of the gratification, the act sought or performed, and the amount demanded cannot be considered in isolation to each other. The value of gratification is to be considered in proportion to the act to be done or not done, to forbear or to not forebear, favour or disfavour sought, so as to be trivial to convince the Court, not to draw any presumption of corrupt practice. It is also not necessary that only if substantial amount is demanded, the presumption can be drawn. The overall circumstances and the evidence will also have to be looked into. Section 20 would come into operation only when there is no nexus between the demand and the action performed or sought to be performed. But, when the fact of

¶292

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receipt of payment or an agreement to receive the gratification stands proved, there is a clear case of nexus or corroboration and the presumption itself is irrelevant. Section 20 gets attracted when it is proved that the public servant has accepted or agreed to accept any gratification other than legal remuneration and in that case, presumption is that it is the motive or reward for any of the acts covered under Section 7, 11 or 13(1)(b) of the Act. The presumption under Section 20 is similar to Section 118 of the Negotiable Instruments Act, 1881, where the onus is on the accused to prove that he is not guilty of the offences charged. The first two limbs under subsections (1) and (2) of Section 13 make it clear that adequacy of consideration is irrelevant to draw the presumption. That apart, sub-section (3) only grants a discretion to Court to decline from drawing any presumption if the amount is so trivial so that such inference of corruption is not fairly possible in the facts of the case. Therefore, it is not a rule but an exception available to the Court to exercise its discretionary power in the facts and circumstances of the case. In the present facts of the case, we are not inclined to exercise such discretion. As such, the judgment of acquittal passed by the High Court is illegal, erroneous and contrary to the materials on record.

¶294

In view of the rival contention of the parties, this Court perused the material on record meticulously.

¶295

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On such perusal of the material on record, the following

¶297

points would arise for consideration:

¶298

i. Whether the material on record is sufficient enough to maintain the order of conviction recorded by the learned Trial Judge in Spl.C.No.116/2010 for the offences punishable under Section 7, 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act?

¶299

ii. Whether the appellant is in position to establish that the impugned judgment is suffering from legal infirmity and perversity and thus, calls for interference?

¶300

iii. If the answer to the above points are in affirmative and negative, whether the sentence needs relook?

¶301

iv. What order?

¶302

28. REGARDING POINT Nos.1 and 2 :

¶303

Prosecution in order to establish its case examined seven witnesses as P.Ws.1 to 7. Among them P.W.1 S.Girish Kumar is the complainant, who deposed about the work pending with the complainant especially the bill dated

¶304

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21.12.2009 in respect of the work order for painting and other related works in a sum of Rs.14,11.494/-.

¶306

He further deposed about the demand of bribe money by the appellant which he was not interested to part with and therefore lodging the complaint vide Ex.P.1 and CBI conducting the entrustment mahazar by securing the pancha witnesses and demonstrating the chemical reaction of phenolphthalein powder with Sodium Carbonate solution and thereafter actual trapping of the appellant.

¶307

In his cross-examination, he has admitted that the tender work was not completed in toto and he had furnished the running bill and there was an endorsement made by the appellant to release 75% of the bill amount on noting the fact that the work was not yet completed as per the work order.

¶308

He also admitted that earlier to the present bill, he had carried out about 20 work orders and all those bills have been cleared by the appellant without demanding the bribe amount. It is also admitted by him

¶309

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that in respect of the work of other contractors also he has no information that the appellant has demanded the bribe money. Pertinently above admissions are made by him to Court questions.

¶311

P.W.2 is the shadow witness who deposed about the pre-trap mahazar and drawing up of trap mahazar. In his cross-examination he clearly admits that though he was directed to be present with the complainant at the time of handing over the tainted currency to the hands of the appellant and to observe the proceedings carefully and speak about the demand and acceptance, he admits that he did not accompany the complainant even though he was required to do so. He admits that he was standing about 200 feet away from the place where appellant and complainant were conversing with each other and he did not hear what conversation took place between them. More so, the said place is machine room.

¶312

P.W.3 is the Trap Laying Officer who deposed about the receipt of complaint, forming raid party, drawing

¶313

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up of pre-trap mahazar and trap mahazar and spot sketch. His evidence is almost formal in nature inasmuch as he could not specifically say whether there was a demand and acceptance except the oral testimony of P.W.1.

¶315

Sri Muralidhar, a Chief Engineer, Plant Maintenance, HAL, Bengaluru is examined as P.W.4, who deposed that complainant was roaming in the corridors of the HAL and on enquiry, he told him about the pending bill.

¶316

Sri. A.N. Muralidhar has deposed that the file is with the appellant and therefore, he has to get the file moved from appellant. He also deposed about the seized documents marked at Exs.P.7 to P.12.

¶317

In his cross-examination he admits that appellant was in-charge of his department and Smt. Vijaya was working as Personal Assistant to appellant. He admits that if anybody wants to visit the appellant, they have to take necessary permission from Smt. Vijaya by entering their details, as HAL campus was protected zone and entry

¶318

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inside is a restricted entry. He has identified Ex.P.11 (a) as disputed bill. He admits the endorsement made in Ex.P.11 (a) which reads as under:

¶320

“Please process the bill as discussed for the extent of work ceiling completed 75% of the actual. Balance after floor painting get sacrifier and sample test by 29.12.2009".

¶321

He admits that said endorsement was addressed to B.T. Narayanaswamy and endorsement is by the personal assistant of the appellant. He admits that as per the said endorsement, 75% of the bill had to be paid to the contractor on or before 29.12.2009. He admits the statement given by him before the Investigating Officer which reads as under:

¶322

"On receipt of the bill, myself and Shri. B.T. Naryanaswamy, Senior Assistant Civil will together carry out the measurement of the painting work done by M/s Annapoorneshwari Associates. After the measurement, the measurement book will be

¶323

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put up before chief Manager (Plant Maintenance) who will examine the details of the measurement book and put his signature in the measurement book on token of checking. Later the measurement book along with covering letter will be sent through Chief Manager (Plant Maintenance) to the accounts section of overhaul division for payment of the bill. Hence it is to state that after measurement, the bill has to be put up before chief Manager again for his final recommendation."

¶325

I have stated before the CBI on 3.2.2010 as follows:-

¶326

"On receipt of the bill myself along with B.T.Narayana Swamy, Senior Assistant, Civil and the contractor are required to carry out the measurement of the painting work done by M/s Annapoorneshwari Associates at Mirage Hanger"

¶327

He submits that in Ex.P.8 there is an endorsement made which is to himself and Narayanaswamy and beneath such endorsement appellant has signed on 28.12.2009 itself. He admits that Ex.P.8 correspondence to Ex.P.11 (a) dated 29.12.2009. He further admits that he received the Bill on 30.12.2009

¶328

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itself. He further admits that as on 30.12.2009 procedure of taking of the measurement of painted ceiling of Hanger and reporting the same to the appellant was pending in his department.

¶330

He also admits the time of receipt of the bill is not mentioned in Ex.P.8. He admits that the bill was received by the appellant on 21.12.2009. 25.12.2009 was a general holiday, 26.12.2009 appellant was on leave and 27.12.2009 was Sunday.

¶331

He further admits that on 28.12.2009 itself the bill was referred to him and Ex.P.9 is the file of contract pertaining to the complainant. He further admits that in Ex.P.9 there is a reference to calling of tender, acceptance of tender, issue of work order and the date of completion of the work. He admits that the endorsement is to be made for processing of the bill as to the completion of the work. He admits the letter in Ex.P.9 which is marked as Ex.D.1. The contents of Ex.D.1 reads as under:

¶332

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“With reference to the above subject work, we like to inform you that the user department had stopped the work of floor preparation stating that the previous floor painting should be scraped completely and we informed the same to your engineering department and your engineering department instructed us orally to scrape the floor paint which was not in our scope of work and we had started it by your oral instruction by using paint removers and our labour force but till now we have not and received any devated order or any letter from your side so we are stopping the work from 20.12.2009 till the thing is finalized. So we request you to please finalize as early as possible.”

¶334

He admits another letter dated 21.12.2009 which is marked as Ex.D.2. Contents of Ex.D.2 reads as

¶335

under:

¶336

“With reference to the above subject work we had written a letter regarding devation of work which was directed by orally from your department to us and we have started the work on 17.12.2009 and 15-20% of wok has been completed but still now we have not received the devation order or any letter from your side. So we request you to please

¶337

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inform us that we should stop the work or execute the work.”

¶339

He further admits that as on 31.12.2009 bill pertaining to the ceiling work was not in possession of appellant. He admits that as on 21.12.2009, his department had received Ex.D.1, Ex.D.2 and Ex.P.8. He further admits that complainant is the son of union leader of HAL. He admits that he is the senior most officer in the department after the appellant. He admits that after the work is completed in his department, the bill would be recommended to accounts department for payment. He further admits that whatever the decision that is taken by the appellant, it will be based on the field work report to be furnished by his department.

¶340

P.W.5 – Dr. Ravi Shankar is the officer from FSL department who has examined the seized articles and given a report vide Ex.P.13.

¶341

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P.W.6 – D. Balasunder is the managing

¶343

Director of HAL who issued sanction order to prosecute the appellant vide Ex.P.14.

¶344

P.W.7 – R. Ramachandran is the Investigating Officer who conducted the further investigation after taking over the investigation from P.W.3 and filing the charge sheet.

¶345

In the cross-examination of P.W.7 it is elicited that in Ex.P.20 there are telephone numbers and Ex.D.3 is the telephone number of the complainant. In Ex.D.3 there is a mention that an SMS has been sent by P.W.1 to the phone number of the complainant on 01.05.2009 and 02.05.2009.

¶346

He further answered that when complainant was examined by him, he did not reveal about sending of SMS threatening the complainant. Telephone bill pertaining to the appellant was confronted to him which he admits and therefore the same was marked at Ex.D.4. He admits that in respect of an SMS sent, it would be either

¶347

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stored in the phone or sim card and sim card assumes the important role in storing the data.

¶349

He admits that as he enquired the appellant soon after the trap, appellant has told him that complainant has forcibly thrusted currency notes into his pocket. He admits that he did not made the statement of the accused pertaining to his defence that he has not demanded the bribe and it is the complainant who thrusted the currency notes into his pocket as it is an afterthought of the appellant.

¶350

He admits that as on the date of trap, appellant had already recommended for disburse of 75% of bill amount to measurement department. He also admits that on the date of trap, there was no official favour to be made by the appellant in favour of the complainant.

¶351

Learned counsel for the appellant, based on the aforesaid material evidence, contended that one of the prime ingredient to attract offence under Section 7, 13 (1)

¶352

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(d), r/w Section 13 (2) of Prevention of Corruption Act is that a work of the complainant must be pending with the appellant and to complete the said work, appellant must have made demand for illegal gratification to the complainant by misusing the official power. Such a parameter is not established by the prosecution in the case on hand, in view of the admissions which have been elicited in the cross-examination of prosecution witnesses and sought for allowing the appeal.

¶354

Per contra, learned counsel for the respondent contended that in the case on hand, the tainted currency has been handled by the appellant and therefore, the colour test stood positive.

¶355

He would further contend that admittedly, as on the date of trap, the bill of complainant was not processed and paid which shows that the work was very much pending and appellant being the person who was required to process the bill had not processed the same.

¶356

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¶357

He further contended that the material evidence on record is sufficient enough to prove the necessary ingredients which has been rightly appreciated by the learned Trial Judge in the Court below and therefore, sought for dismissal of the appeal.

¶358

On re-appreciation of the material evidence on record it is crystal clear that the bill was filed with the office of the appellant on 21.12.2009. Admittedly, it is a running bill, in other words, work was not completed as per the work order by the complainant.

¶359

P.W.4 has catergorically admitted that 25.12.2009 was a general holiday, 26.12.2009 accused was on leave and 27.12.2009 was Sunday. He further admitted that on 28.12.2009 itself appellant had made an endorsement and referred the file to the Section of P.W.4 recommending payment of 75% of the bill amount as the work was not yet completed.

¶360

Pursuant to Ex.P.8 endorsement, Ex.P.11 (a) was issued and as on 30.12.2009, the file containing the

¶361

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¶362

bill of the complainant was in possession of P.W.4 and it was not in the possession of the appellant. As such, appellant demanding illegal gratification on 30.12.2009 as is contended by prosecution is doubtful.

¶363

Endorsement made at Ex.P.8 and Ex.P.11 (a) having been admitted by P.W.4, it is crystal clear that on 28.12.2009 i.e., the very next working day that the appellant resumed to the office, he has made necessary endorsement recommending 75% of the bill amount.

¶364

When it is also admitted by P.W.4 that at the time of presentation of bill on 21.12.2009 is not mentioned. Taking note of the same, the time that was remaining for the appellant to process the bill was 22.12.2009 to 28.12.2009. 22.12.2009, 23.12.2009 and 24.12.2009 are the three days on which the bill was being processed and on 28.12.2009 the appellant has processed the bill and has recommended payment of 75% of the bill amount.

¶365

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¶366

As such, even before the alleged demand made by the appellant, the file had already been processed and was sent to P.W.4. P.W.4 was thereafter required to take the measurements of the painting work and then file a report and then sent again for the purpose of recommendation to the accounts department. Even before that could have been done, on 31.12.2009 trap has taken place. When the complainant contacted in the interregnum, and when exactly the appellant demanded the bribe money is not forthcoming on record either in the complaint or in the oral testimony of the complainant.

¶367

Therefore, the question of the demand and acceptance is not established by the prosecution by placing necessary evidence on record. Admittedly, there is no tape recorder conversation though the same was directed to be used for recording the conversation.

¶368

P.W.2 is the shadow witness. It is pertinent to note that despite specific direction to him by the head of the raid party to accompany the complainant when the

¶369

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demand and acceptance would take place. Despite such direction P.W.2 did not accompany the complainant. Admittedly, he was standing at a distance of 200 feet from away from the complainant and accused. He admits that he could not hear the conversation between the complainant and the appellant. In other words, insofar as the demand is concerned on the day of trap, except the sole testimony of the complainant, no other plausible evidence is placed on record. Pertinent to note that defence has elicited in the cross-examination of the investigating officer that accused has sent two SMS on 01.05.2009 and same is also depicted in Ex.D.4. What exactly the message was sent on 01.05.2009 is not investigated by the Investigating Officer.

¶371

It is also admitted by P.W.4 that complainant is the son of union leader who used to get majority of the work orders in HAL. It is also found from the material on record especially while answering the Court question by P.W.1 that appellant had not demanded any bribe money

¶372

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when he processed more than 20 bills of the complainant earlier to the bill in question.

¶374

Likewise, to another Court question whether he has got knowledge that whether appellant has demanded any bribe money from other contractors, complainant has categorically answered that appellant had not demanded money from other contractors for processing their bills.

¶375

These two answers are significant enough in appreciating the case of the prosecution in toto. Therefore, looking into the conduct of the appellant in recommending 75% of the bill to be processed on 28.12.2008 itself as per Ex.P.8 and Ex.P.11 (a), the sole testimony of complainant with regard to the fact of demanding the bribe money by the appellant without there being any suitable corroboration, cannot be believed so as to uphold the order of conviction.

¶376

In the light of above factual aspects, especially as on 30.12.2009, the file was with P.W.4 and nothing was required to be done by the appellant till file again reaches

¶377

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his table after being processed by P.W.4, this Court is of the considered opinion that appellant purposefully retained the file of the complainant with a demand of bribe cannot be believed.

¶379

Further, it is settled principles of law and requires no emphasis that unless demand and acceptance is properly established by the prosecution, no offence under Section 7, 13 (1) (d) and 13 (2) of the Prevention of Corruption Act can be held to be proved.

¶380

In this regard, this Court gainfully places reliance on the principles of law enunciated in the aforesaid judgments relied on by the learned counsel for the appellant.

¶381

However, leaned counsel for the CBI while referring to the citations cited by him in Sita Soren supra, wherein the principles of law enunciated by the Constitution Bench of Apex Court in Neeraj Dutta supra has been approved, contended that mere acceptance of

¶382

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the tainted currency would complete the offence under Section 7 of the Prevention of Corruption Act.

¶384

No doubt, the law has evolved as is contended

¶385

on behalf of the CBI in aforesaid judgments. But, in a given case if the defence propounds an alternate theory for the handling of the tainted currency, especially the tainted currency being thrusted on accused, the degree of proof to be placed by the accused is preponderance of possibilities and not strict proof. Defence had stated that the appellant was somehow wanted to escape from the consequences of violating the terms of the work order and therefore hurriedly submitted the bill on 21.12.2009 itself, though the work had not been completed in toto. It is also established by the defence that in view of writing of Exs.D.1 and D.2 by the complainant, the theory put forward by the appellant stands established. Admittedly, in the teeth of contends of Exs.D.1 and D.2 much earlier to the date of trap, this Court is of the considered opinion that considering the previous conduct of the appellant

¶386

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having been admitted by complainant, the isolated incident of colour test turning positive on the day of trap alone would not be sufficient to maintain the order of conviction.

¶388

It is settled principles of law and requires no emphasis that on the same set of facts and materials on record if two views are permissible, view that favours the accused must be preferred.

¶389

Likewise, it is equally settled principles of law that prosecution has to travel a long distance from may be proved to actual proof.

¶390

Yet another celebrated principle of criminal jurisprudence is that any amount of suspicion would not take the seat of proof.

¶391

Keeping in background the above principles, viewed from any angle, in the absence of sufficient proof of demand and acceptance mere recovery of the tainted currency from the appellant, for which, there is a suitable explanation offered by the appellant that the money was

¶392

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thrusted into his pocket assumes a greater significance in appreciating the case in toto.

¶394

Keeping these aspects in the background when the material evidence on record is re-appreciated by this Court, this Court is of the considered opinion that the prosecution evidence placed on record is hardly sufficient to hold that the prosecution is successful in establishing all the ingredients which are required to attract the offence punishable under Section 7, 13 (1) (d), r/w Section 13 (2) of the Prevention of Corruption Act.

¶395

There cannot be any dispute as to the principles of law enunciated in the judgment of State of Karnataka vs. Chandrasha , reported in 2024 SCC OnLine SC 3469 . However, facts involved in the said case are altogether different from the facts involved in the case on hand especially shadow witness did not accompany the complainant in the case on hand and uncorroborated oral evidence of complainant alone cannot

¶396

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form the basis for recording of conviction against the appellant.

¶398

Accordingly, this Court is of the considered opinion that the point No.1 is to be answered in the Negative and the same is recorded. Consequently, point No.2 is answered in Affirmative.

¶399