Case Law Details
Om Prakash Vimal Vs State Through C.B.I./ACB/Lucknow (Allahabad high court)
Allahabad High Court held that when public servant himself makes a demand and demand is accepted by bribe giver and bribe is paid by the bribe giver, it is a case of obtainment under Section 13(1)(d)(i) and 13(1)(d)(ii) of the Prevention of Corruption Act, 1988.
Facts- The present appeal u/s 374(2) Cr. P.C. read with Section 27 of the Prevention of Corruption Act, 1988 (P.C. Act) has been filed against the judgement and order passed by the learned Special Judge, CBI, Lucknow in Criminal case.
Notably, the trial court convicted and sentenced the accused-appellant u/s. 7 of the P.C. Act for three years rigorous imprisonment with fine of Rs. 40,000 and u/s. 13(2) read with Section 13(1)(d) of the P.C. Act for four years rigorous imprisonment with fine of Rs. 60,000.
A written complaint was received in the office of the Superintendent of Police, CBI, Lucknow by Shailendra Kumar, Proprietorship of firm of M/s Kashyap Trading Company alleging that the said concern of the complainant was in the wholesale trading of food-grains and was audited regularly by the Chartered Accountant every year. From the year 2002-03 as his firm was running into losses, the income tax was not payable and, therefore, was not paid. The complainant received a notice from the Income Tax Office in respect of the returns of the proprietorship firm of the complainant for F.Y. 2003-04 and 2004-05.
The accused-appellant demanded Rs. 60,000/- as bribe amount to nil his income tax assessment. The accused-appellant threatened the complainant that in case he would not pay the bribe amount, heavy tax and penalty would be imposed on the complainant. Thereafter, on the request of the complainant, the accused-appellant told him to reduce the bribe amount to Rs. 50,000/- and directed the complainant to bring the bribe amount at his residence in making the tax liability of the complainant nil.
Conclusion- Once the accused-appellant accepted the bribe amount and he kept it in the drawer of the office table, which was of the accused-appellant, the recovery from the drawer of the office table of the accused-appellant, is recovery from the accused-appellant himself.
If a public servant himself makes a demand and demand is accepted by bribe giver and bribe is paid by the bribe giver, it is a case of obtainment under Section 13(1)(d)(i) and 13(1)(d)(ii) of the P.C. Act.
Held that the prosecution has been able to prove the case of demand and acceptance of the bribe by the accused-appellant from the complainant and, the learned trial court has rightly convicted and sentenced the accused-appellants for the aforesaid offences.
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
1. The present appeal under Section 374(2) Cr.P.C. read with Section 27 of the Prevention of Corruption Act, 1988 ( for short ‘P.C. Act’) has been filed against the judgement and order dated 5.11.2015 passed by the learned Special Judge, CBI, Court No.2, Lucknow in Criminal Case No.9 of 2007 (CBI Vs. Om Prakash Vimal), arising out of RC No.0062006A0030/2006, Police Station CBI/ACB, Lucknow, whereby the learned trial court has convicted and sentenced the accused-appellant under Section 7 of P.C. Act for three years rigorous imprisonment with fine of Rs.40,000/- and default of payment of fine, further to undergo six months rigorous imprisonment and under Section 13(2) read with Section 13(1)(d) of P.C. Act for four years rigorous imprisonment with fine of Rs.60,000/- and in default of payment of fine, further to undergo one year additional rigorous impoverishment with direction that both the sentences shall run concurrently except for fine.
Facts:-
2. Brief facts of the case are that a written complaint dated 26.12.2006 was received in the office of the Superintendent of Police, CBI. Lucknow by Sri Shailendra Kumar, Proprietorship of firm of M/s Kashyap Trading Company alleging that the said concern of the complainant was in the wholesale trading of food-grains and was audited regularly by the Chartered Accountant every year. From the year 2002-03 as his firm was running into losses, the income tax was not payable and, therefore, was not paid. The complainant received a notice from the Income Tax Office in April, June and November, 2006 in respect of the returns of the proprietorship firm of the complainant for Financial Years 2003-04 and 2004-05. In respect of these notices, he met the accused-appellant several times and clarified his position through letter dated 7.12.2006. On 21.12.2006, the accused-appellant demanded Rs.60,000/- as bribe amount to nil his income tax assessment. The accused-appellant threatened the complainant that in case he would not pay the bribe amount, heavy tax and penalty would be imposed on the complainant. Thereafter, on the request of the complainant, the accused-appellant told him to reduce the bribe amount to Rs.50,000/- and directed the complainant to bring the bribe amount by 27.12.2006 at his residence in making the tax liability of the complainant nil.
3. The Superintendent of Police, CBI, Lucknow after verifying the complaint, directed for registration of the FIR and nominated Sri V. Dixit as Trap Laying Officer (TLO). A trap team was constituted, which included Shailendra Kumar, the complainant;z Ram Shabd Verma, independent witness; Sri Junail Ibad Khan, independent witness; N.N. Pandey, CBI Inspector; G.K. Dubey; A.K. Pandey; Diwakar Pandey; R.K. Tewari, Sub-Inspector; S.K. Pandey, Ashok Kumar; R.N. Shukla, Constable and G.S. Bisht with T.L.O. In presence of these persons, pre-trap proceedings were completed. The complainant brought Rs.50,000/- in denomination of Rs.500/- each. The numbers of these currency notes were noted down and they were treated with Phenolphthalein powder, and the said bribe amount was kept in the right pocket of pant of the complainant.
4. Ram Shabd Verma, independent witness, was deputed as shadow witness to be present at the time of giving the bribe amount by the complainant to the accused-appellant. The other independent witness, Junail Ibad Khan was directed to remain present with the CBI team. The CBI team after competing the pre-trap proceedings, proceeded to the residence of the accused-appellant at 3 PM on 27.12.2006 itself.
5. The complainant and the shadow witness were on motorcycle. The accused-appellant was seen going to his office on foot from his residence. The complainant stopped the motorcycle and requested the accused-appellant to go to his residence. However, the accused-appellant asked the complainant to reach to his office. This conversation between the accused-appellant and the complainant was clearly heard by the shadow witness, Ram Shabd Verma. This conversation was told to T.L.O. Sri V. Dixit, who decided to catch the accused-appellant red handed accepting the bribe amount in his office.
6. As per the plan, the complainant and the shadow witness went to the retiring room of the accused-appellant at 16.15 hours. On indication by the shadow witness, the CBI team with independent witness, Junail Ibad Khan reached to the office of the accused-appellant and caught him red handed accepting the bribe amount. The bribe amount was recovered from the drawer of the office table of the accused-appellant. The colour of wash of the hands and fingers of the accused-appellant turned pink. The bribe amount was recovered by the independent witness, Junail Ibad Khan from the drawer of the office table of the accused-appellant. The numbers of the currency notes matched with the numbers mentioned in the pre-trap proceedings. After completing the investigation, charge sheet was submitted by the CBI/ACB, Lucknow under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C. Act.
7. The CBI concluded in its investigation that the accused-appellant was caught red handed while demanding and accepting the bribe amount of Rs.50,000/- on 27.12.2006 in presence of the two independent witnesses in his office and the accused-appellant was arrested on the spot. Sanction order for prosecuting the accused-appellant was issued by the Commissioner of Income Tax, Faizabad on 23.3.2007. After taking cognizance, the accused-appellant was summoned to face the trial. After completing the proceedings under Section 207 Cr.P.C. on 24.10.2007, charges were framed against the accused-appellant by the learned trial court under Sections 7 and 13(2) read with Section 13(1)(D) of P.C. Act. The accused-appellant denied charges and claimed trial.
8. In investigation, it was noticed that the accused-appellant was posted as Income Tax Officer from 30.6.2005 to 27.12.2006. The accused-appellant was on a position to make assessment of the income tax of the proprietorship firm of the complainant. The case file for assessment of the proprietorship firm of the complainant was pending from the date when the accused-appellant took charge on 30.6.2005 from his predecessor, Sri Nimish Mishra. The accused-appellant did not finalise the assessment of the proprietorship firm of the complainant and kept it pending and did not finalise the assessment order till 27.12.2006. He kept the proceedings of assessment pending in order to receive illegal gratification from the complainant.
9. During investigation, it was also noticed that no order was passed in the order-sheet of the assessment proceedings of the proprietorship firm of the complainant since June, 2006. Initially, the accused-appellant demanded Rs.60,000/- from the complainant as illegal gratification on 21.12.2006. However, finally he agreed to receive Rs.50,000/- as illegal gratification on 27.12.2006 to finalise the assessment at nil tax on the proprietorship firm of the complainant.
Evidence:-
10 The prosecution to prove its case, examined the following witnesses:-
1.P. W.-1, D.C. Pant, in respect of the sanction order passed by him for sanctioning prosecution of the accused-appellant;
2.P. W.-2, Shailendra Kumar, the complainant
3. , Ram Shabd Verma, shadow witness;
4. P. W.-4, V. Dixit, T.L.O.;
5. P. W.-5, Junail Ibad Khan, independent witness;
6. P. W.-6, Shobhnath Saroj, Income Tax Officer;
7. P. W.-7, Devendra Singh, Additional Superintendent of Police, Investigating Officer;
8. P. W.-8, Yogendra Prasad Gupta, Assistant General Manager, BSNL, Basti;
9. P.W.-9, Virendra Dev Singh, Income Tax Inspector, Basti; and
10. P.W.10, Ajit Kumar Jain, Retired Additional Commissioner,11.
11. Several documentary evidences were also produced in support of the prosecution case, which are mentioned in the impugned judgement and order of the learned trial court.12.
12. The accused-appellant in his statement recorded under Section 313 Cr.P.C. denied the prosecution case, evidence and the circumstances against him. The accused-appellant said that on 30.6.2005, he took the charge of the Income Tax Officer, Basti. The complainant could not have been discharged of his liability to pay the income tax, The appellant did not demand or accept any bribe amount from the complainant and neither any bribe amount was recovered from him. As soon as he reached the office from his residence after having lunch at his residence, the CBI personnel apprehended him. The complainant wanted to escape from the income tax liability, for which he conspired and falsely implicated the accused-appellant. The accused-appellant, however, said that Rs.50,000/- was kept in the drawer of his office table by the complainant in his absence. The accused-appellant said that he was innocent and he neither demanded any bribe amount from the complainant nor any bribe amount was recovered from him. The complainant met the accused-appellant while he was coming back to his office from his residence after having lunch. The accused-appellant was on foot and the complainant was on motorcycle. Before the accused-appellant could reach his office on foot, the complainant reached to the office of the accused-appellant and kept Rs.50,000/- in the drawer of his office table. Further, he said that he could not have discharged the complainant from his liability to pay the income tax. When the complainant could come to know that on 31.12.2006 the order would be passed against him fixing his income tax liability, he falsely implicated the accused-appellant.
13. In his defence, the accused-appellant produced two witnesses, D.W.-1 Hari Ram, and Nand Kumar, D.W.-2 and also submitted documentary evidence Ext.Ka-1 and Ext.Ka-2, information received under the Right to Information Act.
14. W.-1, Sri D.C. Pant, Income Tax Commissioner, Faizabad proved the order dated 23.3.2007 (Ext.Ka-1) granting sanction for prosecution of the accused-appellant.
15. W.-2, Shailendra Kumar, the complainant, deposed that he got registered M/s Kashyap Trading Company proprietorship firm in the year 1996 and started wholesale business of food-grains in the year 1999. Initially, his business did not come within the income tax limit. However, w.e.f. 2003-04 when he took loan of Rs.18,00,000/- from the bank, his business increased and he submitted the requisite papers before the Income Tax Department in Varanasi and Basti. No income tax was paid as his business was not running in profit. A raid was conducted on 30.1.2004 at the complainant’s place, and this affected the business of the complainant and he suffered losses.
16. The accused-appellant started proceedings in respect of the Assessment Years 2003-04 and 2004-05 of the proprietorship firm of the complainant. The entire requisite papers were submitted before the accused-appellant. However, the accused-appellant demanded Rs.60,000/- for finalising the assessment and making the tax liability nil. He demanded the bribe money of Rs.60,000/- on 21.12.2006. When the complainant expressed his inability to pay Rs.60,000/-, the accused-appellant agreed to accept Rs.50,000/- to be paid on 27.12.2006 at his residence and said that he would pass the order on 31.12.2006 making the tax liability nil in respect of the proprietorship firm of the complainant. He further deposed in respect of the pre-trap and post-trap proceedings. He said that he and the shadow witness reached to the office of the accused-appellant after he met the appellant while he was coming back from his residence after having lunch on 27.12.2006. The accused-appellant asked whether he brought the bribe amount of Rs.50,000/- or not. He introduced the shadow witness as his brother-in-law and requested the accused-appellant to reduce the bribe amount, on which he said that “neither brother-in-law nor father-in-law would be of any help, whatever was agreed, the complainant should pay”. On this, he took out Rs.50,000/-Phenolphthalein treated currency notes from his right hand pocket of the pant and gave it to the accused-appellant, which he took from his right hand and kept in the drawer of his office table. On indication by the shadow witness, the CBI team reached there and the accused-appellant was caught red handed.
17. P. W.-3, Ram Shabd Verma, shadow witness, also reiterated the pre-trap and post-trap proceedings and fully corroborated the evidence of the complainant, P.W.-2.
18. P. W.-4, Sri V. Dixit, DSP, CBI/ACB, Dehradun in his evidence said that from May, 2002 to May, 2008 he was posted as Inspector in the office of the CBI/ACB, Lucknow. On 26.12.2006, at around 1230 hours Sri Praveen Ranjan, Superintendent of Police, CBI, Lucknow called him in his room and introduced him to the complainant, proprietor of M/s Kashyap Trading Company. He handed over the complaint given by Shailendra Kumar, the complainant, on which RC No.0062006A0030/2006 was registered on 26.12.2006. He proved the signatures of Sri Praveen Ranjan on the said complaint as well as the FIR, which were exhibited. The said witness also fully corroborated the pre-trap and post-trap proceedings and said that the bribe amount was recovered by the independent witness, Junail Ibad Khan from the drawer of the office table of the accused-appellant and the numbers of the currency notes were matched with the numbers written in the pre-trap proceedings. The seizure memo was prepared, which was exhibited and the envelop containing the bribe amount was also exhibited as Ext.Ka-2.
19. P. W.-5, Junail Ibad Khan, independent witness, in his deposition said that on 27.12.2006, he was working as Engineer, Sub-division, Mobile in the office of the General Manager, Telecom, BSNL, Basti. He also corroborated the pre-trap and post-trap proceedings. The said witness said that he recovered Rs.50,000/- bribe amount from the drawer of the office table of the accused-appellant.
20. P.W.-6, Sri Shobh Nath Saroj, Income Tax Officer, Gonda in his deposition said that on 28.12.2006 he took charge of the Income Tax Officer, Basti in place of the accused-appellant as the accused-appellant was arrested by the CBI. He proved the document regarding penalty imposed on M/s Kashyap Treading Company for Assessment Year 2004-05 vide order dated 20.6.2005 passed by Sri Nimish Mishra, Income Tax Officer under Section 271-B of the Income Tax Act. He also deposed and proved the document imposing penalty of Rs.80,000/- on the complainant for the Assessment Year 2003-04 vide order dated 20.6.2005 by Sri Nimish Mishra. The order-sheet from 14.2.2005 to 20.6.2005 was written by Sri Nimish Mishra, the then Income Tax Officer for the Assessment Year 2003-04 in respect of the income tax return of the complainant. Vide order dated 5.8.2005, notice under Section 226(3) of the Income Tax Act was sent to the Branch Manager, State Bank of India, Basti for recovering Rs.80,000/- from the bank account of the proprietorship firm of the complainant. However, the said notice was not mentioned in the order-sheet, and it was the duty of the accused-appellant to mention the said fact and the notice in the order-sheet.
21.In respect of the Assessment Year 2004-05, the witness said that after 14.6.2006, no order was written on the order-sheet in respect of the proceedings for the Assessment Year 2004-05 by the Income Tax Officer, whereas the accused-appellant had given notices dated 15.6.2006, 24.11.2006 and 30.11.2006 to the complainant, proprietor of the firm. However, these notices were not part of the order-sheet and have not been mentioned.
22. For the Assessment Year 2003-04 in respect of the proceedings of income tax assessment of the complainant’s firm, there was no proceeding/order in the order-sheet after 7.6.2006. However, it was the duty of the Income Tax Officer, Basti to write the order-sheet. The question that why the order-sheet was not written by the accused-appellant, who was posted as Income Tax Officer at the relevant time, the witness said that it could very well be explained by the accused-appellant himself.
23.P. W.-7, Devendra Singh, Additional Superintendent of Police, CBI, New Delhi said that after the prosecution sanction was received, charge sheet was filed on 26.2.2007 against the accused-appellant in the competent court.
24. P. W.-8, Sri Yogendra Pratap Gupta, Assistant General Manager, BSNL, Basti said that on the direction of the superior officer, he remained present as witness out of his free will during search of the house of the accused-appellant on 27.12.2006.
25. P. W.-9, Virendra Dev Singh, Inspector, Income Tax Office, Basti deposed that he was posted as Stenographer from 2003 to 2007 in the Income Tax Office, Basti. Vide notice dated 5.12.2003 issued under Section 142 of the Income Tax Act under the signature of the then Income Tax Office, Sri Nimish Mishra, the complainant, Shailendra Kumar was directed to submit the details of the account for the Assessment Year 2003-04 and similar notice was issued for the Assessment Year 2002-03 and the details of the account were to be submitted by 24.12.2003. He said that till 27.12.2006, no assessment order was passed in respect of the complainant, proprietor of M/s Kashyap Trading Company for the Assessment Years 2003-04 and 2004-05 and it was the accused-appellant, who was the competent authority to pass the assessment order. This witness proved several documents filed on record by the CBI.
26. P. W.10, Ajit Kumar Jain, Retired Additional Income Tax Commissioner in his deposition said that he was promoted on the post of Additional Income Tax Commissioner in January, 2005 and remained posted in Lucknow on the said post till 31.8.2008. He was given the additional charge of Income Tax Range, Gonda in November, 2005, which remained under him till 2007. The Income Tax Office, Basti comes within the range of Gonda. He further said that the accused-appellant got the charge of the Income Tax Officer, Basti on 30.6.2005 after Sri Nimish Mishra. He said that for the Assessment Years 2003-04 and 2004-05, it was the accused-appellant as an Income Tax Officer, Basti, who was competent to pass the order. Till the accused-appellant was arrested by the CBI in the trap proceedings, he did not pass any order for the Assessment Years 200304 and 2004-05 in respect of the proprietorship firm of the complainant.
27. D. W.-1, Hari Ram said that at the relevant time he was posted as Notice server in the Income Tax Office, Bassti.
28. D. W.-2. Nand Kumar, who was posted as Senior Private Secretary at the relevant time, proved the signature of Dr. A.K. Singh, Income Tax Commissioner, Gorakhpur.
Submissions:-
29. Sri Nandit Srivastava, learned Senior Advocate, assisted by S/Sri Pranjal Krishna, J.P. Awasthi, Mohd. Ibrahim Khan and Anshuman Srivastava for the accused-appellant has submitted that as per the prosecution case, seven persons were present on the spot when the trap proceedings were conducted, who might have heard the conversation between the accused-appellant and the complainant, but they were not examined during trial by the CBI. The complainant had clear motive to falsely implicate the accused-appellant in order to escape from payment of heavy income tax and penalty. Learned trial court had ignored the evidence brought on record to show that the accused-appellant had no motive to demand and accept the bribe amount from the complainant. The complainant was a defaulter of the Income Tax Department as he evaded the tax. The predecessor Income Tax Officer had imposed penalty and intimated the recovery proceedings against the complainant. Therefore, the accused-appellant was not in a position to recall or review the said order passed by the predecessor in office. The accused-appellant was not in a position to pass the assessment order for nil payment of income tax. He has further submitted that the learned trial court had failed to appreciate the evidence of P.Ws.6, 9 and 10, who were the Income Tax Officers and deposed in respect of the orders imposing penalties on the complainant.
30. Learned counsel for the accused-appellant has further submitted that the definite case of the accused-appellant that while he was coming to office on foot from his residence after having lunch, the complainant, who was on motorcycle, entered the office of the accused-appellant and kept the bribe amount in the drawer of the office table of the accused-appellant, should not have been brushed aside by the learned trial court. It is also submitted that even as per the evidence of P.W.-2, when the complainant met the accused-appellant on the way to his office from his residence, the complainant requested him to reach the residence. However, the accused-appellant asked the complainant to meet him in the office. He, therefore, has submitted that the prosecution story that the accused-appellant asked the complainant to give the bribe amount at his residence, falls to ground.
31. Learned counsel for the accused-appellant has further submitted that the alleged bribe amount was recovered from the drawer of the office table of the accused-appellant. The retiring room of the accused-appellant was vacant during lunch as he went to his residence for having lunch and the possibility of putting the bribe amount by the complainant in the drawer of the office table of the accused-appellant during this period, was not a mere suspicion, but was a reality.
32. Learned counsel for the accused-appellant has further submitted that the principle Falsus in Uno Falsus in Omnibus was ignored by the learned trial court in spite of the fact that most of the prosecution witnesses did not depose truthfully. The prosecution had failed to prove the case against the accused-appellant beyond reasonable doubt and the principle “It is better that ten guilty persons escape than that one innocent suffer” was ignored by the learned trial court while convicting and sentencing the accused-appellant. When there was no motive for demand of bribe amount by the accused-appellant, the conviction and sentence of the accused-appellant in absence of any evidence of demand is unjustified. He, has, therefore, prayed for allowing the appeal and acquitting the accused-appellant.
33. On the other hand, Sri Shiv P. Shukla, learned counsel for the CBI has submitted that the accused-appellant kept the file of the complainant for the Assessment Years 2003-04 and 2004-5 pending since June, 2006 without any order on the order-sheet with mala fide intention to demand illegal gratification from the complainant to make the assessment for nil tax. The income tax returns for the Assessment Years 2003-04 and 2004-05 were filed on 26.9.2005 and after notice was issued, relevant papers were submitted on 7.12.2006, but the assessment was not finalised. It is not in dispute that the accused-appellant was in the capacity to finalise the assessment of M/s Kashyap Trading Company, a proprietorship firm of the complainant for the Assessment Years 2003-04 and 2004-05.
34. The evidence of P.W.-2, Shailendra Kumar, the complainant; P.W.-3, Ram Shabd Verma, shadow witness; P.W.-4, V. Dixit, T.LO. and P.W.-5, Junail Ibad Khan, independent witness, would go to prove beyond reasonable doubt that the accused-appellant demanded and accepted the bribe amount of Rs.50,000/- from the complainant, which was recovered from the drawer of the office table of the accused-appellant. He has, therefore, submitted that the learned trial court after detail examination of the evidence, found the case fully proved against the accused-appellant for offences under Sections 7 and 13(2) read with Section 13(1)(d) of P.C. Act for which the accused-appellant was convicted and sentenced by the learned trial court as mentioned above. It is submitted that once the demand and acceptance had been proved and the bribe money was recovered, charge against the accused-appellant got fully proved beyond reasonable doubt and, therefore, the appeal is liable to be dismissed.
35. I have considered the submissions advanced on behalf of the learned counsel for the parties and perused the judgment and order passed by the learned trial court.
Conclusion:-
36. The question which falls for consideration in the present appeal, is whether the prosecution had been able to establish demand and acceptance of illegal gratification of Rs.50,000/- by the accused-appellant from the complainant by leading cogent and credible evidence. The complainant in his evidence had deposed regarding demand and acceptance of the bribe amount and he had also deposed in respect of the pre-trap and post-trap proceedings and, the testimony of the complainant, P.W.-2 was fully corroborated by Ram Shabd Verma, P.W.-3, shadow witness. P.W.-5, Junail Ibad Khan, independent witness, also corroborated the testimony of P.Ws.2 and 3 regarding demand and acceptance of the bribe amount. The hundred currency notes of Rs.500/- each, total Rs.50,000/-, were recovered from the drawer of the office table of the accused-appellant and the numbers of the notes would match the number of notes written down in the pre-trap proceedings.
37. In view thereof, this Court does not find any credence in the submission of the learned counsel for the accused-appellant that recovery was not made from the accused-appellant. Once the accused-appellant accepted the bribe amount and he kept it in the drawer of the office table, which was of the accused-appellant, the recovery from the drawer of the office table of the accused-appellant, is recovery from the accused-appellant himself.
38. Considering the evidence on record, I am of the view that the prosecution was able to prove the demand and acceptance of the bribe amount of Rs.50,000/- from the complainant, P.W.-2 by the accused-appellant, which was recovered from the drawer of the office table of the accused-appellant.
39. It is well settled law that to record the conviction under Sections 7 and 13 of the P.C. Act, the demand and acceptance of illegal gratification by the accused public servant should be proved by cogent and credible evidence. It is also settled law that mere possession and recovery of money without proof of demand by the accused does not constitute an offence under Sections 7 and 13(2) read with 13(1)(d) of the PC Act, 1988 (P. Satyanarayana Murthy Vs District Inspector of Police, State of Andhra Pradesh and another, (2015) 10 SCC 152).
40. Term “demand” does not find place under P.C. Act, 1988, but it has virtually been inserted in the statute by interpretative process. Section 20 of the P.C. Act derives certain statutory presumption of guilt. Section 7 of the P.C. Act has to be read in conjunction with Section 20 P.C. Act, which reads as under:-
“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, without consideration or for a consideration which he knows to be inadequate.
(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.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.”
41. Plain reading with the words of Section 20 of the P.C. Act, would mean that if it can be proved that a public servant has received gratification, Section 20 of the P.C. Act brings in statutory presumption that he has received the same with an illegal motive as laid down in Section 7 of the Act. This shifts the burden of proof to the accused, who is required to prove that what has been received, is a valuable consideration and not an illegal gratification.
42. Constitution Bench of the Supreme Court in a recent judgment in the case of Neeraj Dutta vs State, (2022) SCC OnLine SC 1724, has held that to constitute an offence under Sections 7 and 13(2)/13(1)(d) (i) and (ii) of the P.C. Act, 1988, if a bribe giver makes an offer to pay without there being any prior demand of the same by a public servant and public servant accepts and receives the bribe, it would be a case of acceptance under Section 7 of the P.C. Act, 1988. If a public servant himself makes a demand and demand is accepted by bribe giver and bribe is paid by the bribe giver, it is a case of obtainment under Section 13(1)(d)(i) and 13(1)(d)(ii) of the P.C. Act.
43. It has been held that if the foundational facts are proved, presumption of receipt of obtainment of illegal gratification would be made. If such a presumption of fact would be raised, it is subject to rebuttal by the accused as the presumption under Section 20 of the PC. Act is not an inviolable presumption. However, if the presumption is not rebutted, the offence gets proved as provided under Section 20 of the P.C. Act.
44. In paragraphs 4 and 5 of the aforesaid judgment, ingredients to constitute an offence under Sections 7 and 13(1)(d) of the P.C. Act, 1988 have been mentioned. Paragraphs 4 and 5 of the aforesaid judgment, which are relevant, wound extracted hereunder:-
“4. The following are the ingredients of Section 7 of the Act:
i) the accused must be a public servant or expecting to be a public servant;
ii) he should accept or obtain or agrees to accept or attempts to obtain from any person;
iii) for himself or for any other person;
iv) any gratification other than legal remuneration;
v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour.
Section 13(1)(d) of the Act has the following ingredients which have to be proved before bringing home the guilt of a public servant, namely, –
(i) the accused must be a public servant;
(ii) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
(iii) to make out an offence under Section 13(1)(d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward.
(iv) an agreement to accept or an attempt to obtain does not fall within Section 13(1)(d).
(v) mere acceptance of any valuable thing or pecuniary advantage is not an offence under this provision.
(vi) therefore, to make out an offence under this provision, there has to be actual obtainment.
(vii) since the legislature has used two different expressions namely “obtains” or “accepts”, the difference between these two must be noted.”
45. In paragraph 74 of the aforesaid judgment, the law for establishing guilt of the accused/public servant under Sections 7 and 13(1)(d) has been summarized, which would read as under:-
“74. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1) (d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns “hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.”
46. The Supreme Court has answered the reference that if in absence of evidence of the complainant (direct/primary/oral/documentary evidence), it would be permissible to draw an inferential deduction of culpability/guilt of a public servant under Sections 7, 13(2)/13(1)(d) of the P.C. Act based on other evidence adduced by the prosecution.
47. Considering the evidence on the anvil of the law propounded by the Supreme Court in the case of Neeraj Dutta (supra), I am of the view that the prosecution has been able to prove the case of demand and acceptance of the bribe by the accused-appellant from the complainant and, the learned trial court has rightly convicted and sentenced the accused-appellants for the aforesaid offences.
48. In view thereof, I find no substance in this appeal, which is hereby dismissed. The accused-appellant is on bail. His bail bonds are cancelled and sureties are discharged. He shall be taken into custody forthwith to serve out the sentence as awarded by the learned trial court. The trial court record be returned back forthwith.
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