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Judgment
Heard the arguments of learned Sr. counsel for the appellant and learned A.S.G.I. appearing on behalf of the C.B.I.
The instant criminal appeal has been preferred by the above named sole appellant challenging his conviction and sentence for the offence under Sections 7 & 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 in R.C. Case No. 20A of 2013 (R) passed by the learned Special Judge, CBI, Ranchi vide its Judgment and order dated 30th June, 2017 whereby and whereunder, the appellant has been directed to undergo R.I. for two years with a fine of Rs. 10,000/- for the offence under Section 7 of P.C. Act; further directed to undergo R.I. for two years with a fine of Rs. 2,000/- for the offence under Section 13(2) read with Section 13(1)(d) of the P.C. Act, with default stipulation. All the sentences were directed to run, concurrently.
Factual Matrix:-
The factual matrix giving rise to this appeal is that one Sushil Kongari, AC Helper-II, Grade-D of South Eastern Railway, Hatia, Ranchi filed a written complaint before the C.B.I. stating inter alia therein that appellant, Assistant Engineer (Electrical), South Eastern Railway, Hatia, Ranchi who used to take examination of Group-D (in which grade, the complainant was posted) for promotion in Group C. Accordingly, the complainant appeared in examination scheduled to be held for promotion from Group-D to Group-C. It is alleged that present appellant for passing the examination, demanded bribe of Rs. 10,000/- from the complainant.
Since, the complainant was not desirous to give bribe, he lodged a written complaint before the C.B.I. and the Sub-Inspector of C.B.I., A.C.B., Ranchi verified the complaint and found the allegation prima facie to be true and submitted the report.
On the basis of above complaint, a trap team was constituted after holding pre-trap formalities. The C.B.I. Officials along with independent witnesses conducted a raid near Khukhri Petrol Pump, Doranda, Ranchi. It is alleged that at the time of trap, the complainant offered the bribe money which was accepted by the appellant and he was arrested on 27.09.2013 and post-trap memorandum was prepared.
After completion of investigation, charge sheet was submitted against the accused for the offence under section 7 & 13 (2) r/w 13 (1) (d) of the P.C. Act 1988 and accordingly, cognizance of the offence was taken. The accused pleaded not guilty and claimed to be tried.
In order to substantiate the charges leveled against the appellant, the prosecution has examined altogether (twelve) 12 witnesses:-P.W.-1 Budhadeo Mazumdar P.W.-2 Dipti Bhengra P.W.-3 Sushil Kongari (Complainant) P.W.-4 P.Uma Shankar Reddy P.W.-5 Nandan Kumar Vishwakarma P.W.-6 Om Prakash Hari P.W.-7 Ramesh P.W.-8 Panch Ratan Thakur (Shadow Witness) P.W.-9 Eric W. Ekka P.W.-10 Anem Xaxa (Independent witness) P.W.-11 Asish Anand P.W.-12 S.C. Jha
Apart from oral testimony of the witnesses, the prosecution has adduced following documentary evidence:-Ext.-1 Sanction order approved by P.W.-1 Ext.-2 , 2/1 and 2/2 Signature of P.W.-2 on Bottle D, P R Sent for Examination Ext. 2/3 to 2/19 Signatures of P.W.-3, P.W.-8 and P.W.-10 on different M. Exts. Ext.-2/20 to 2/22 Signature of P.W.-10 on pre-trap memorandum
Ext. 2/23 to 2/25 Signature of P.W.-10 on different M. Exts.
Ext.-2/26 Signature of P.W.-10 on arrest
Ext.-2/28 to 2/31 Signature of P.W.-10 on post-trap memorandum
Ext.-2/32 Signature of P.W.-11 and all concerned on Demo Wash Bottle
Ext.-2/33 Signature of P.W.-11 and all concerned on Mat. Ext.-III
Ext.-2/34 Signature of P.W.-11 and all concerned on Residual of P. Powder
Ext.-2/35 Signature of P.W.-11 and all concerned on right hand wash of accused
Ext.-2/36 to 2/38 Signature of P.W.-11 and all concerned on different Mat. Exts.
Ext.-3 CFSL Report
Ext.-4 Complaint Letter
Ext.-5 Question Paper Dt. 12.09.2013 instead of 24.09.2013
Ext.-5/1 to 5/4 Answer Sheet of other four candidates
Ext.-6 Signature of all on pre-trap memorandum
Ext.-7 and 7/1 Post Trap Memo and Signature of accused on it.
Ext.-8 and 8/1 Two Letters dated 09.09.2013
Ext.-9 Seizure Memo
Ext.-9/1 Trade Test File along with forwarding Letter
Ext.-10 F.I.R.
The prosecution has also examined following material exhibits:-M. Ext.-‘I’ series to ‘X’ are envelope containing cloth, bottle, piece of paper, residual of phenolphthalein power, G.C. Notes etc.
On the other hand, the defence has also examined two witnesses:-D.W.-1 Amir Khan D.W.-2 Rajni
Apart from oral evidence, no documentary evidence has been adduced on behalf of the defence.
The learned trial Court after evaluating the oral as well as documentary evidence along with material exhibits relied upon by the prosecution arrived at definite findings of guilt of the appellant for the offence as stated above which has been assailed in this appeal.
Submissions on behalf of appellant: -
Assailing the impugned judgment of conviction and sentence of the appellant, learned Sr. counsel for the appellant has raised following grounds:-
P.W.-1 Budhadeo Mazumdar, Joint Secretary, Est. Railway Board, has proved sanction order granted by him for prosecuting the appellant who was not competent to accord sanction for prosecution rather a officer not below the rank of secretary, Railway Board, was competent to pass sanction order. In this regard, the learned Sr. counsel for the appellant has placed reliance upon judgment of Hon’ble Supreme Court in the matter of “Nanjappa V. State of Karnataka” (2015) 14 SCC 186.
P.W.-3 Sushil Kongari is the complainant who has given contradictory statements and his testimony suffers from material discrepancies and infirmities showing his malicious intention to involve the appellant in a false case after publication of final result of the limited examination.
Admittedly, the result was published on 25.09.2013 and the complaint was lodged on 26.09.2013. The complainant in the written test has secured only 19 marks out of 45 marks and qualified marks was 15.
P.W.-6 and P.W.-7 who were also candidates in the said examination have stated that they declined to pay any bribe but have been passed.
No preliminary enquiry about truth of the allegation was conducted by the C.B.I. and F.I.R. was directly registered. The result of the examination was already published and the complainant was failed, then, there was no occasion for appellant to demand and received any bribe with a view to show any favour to the complainant in the matter of promotion. There is no material on record that the complainant was otherwise eligible to be passed out but due to non-payment of bribe money, he was deliberately failed.
The complainant and shadow witness (P.W. 8) have failed to prove any demand of bribe by the appellant and for what purposes. Therefore, trap proceeding itself was not properly held and the appellant was falsely implicated showing him taking bribe.
It is settled law that mere recovery of money is not sufficient to prove guilt of the accused rather demand of bribe and its acceptance must be proved beyond doubt.
Submissions on behalf of the State-CBI
On the other hand, learned A.S.G.I. controverting the aforesaid contentions raised on behalf of the appellant has submitted that the learned trial Court has very wisely and aptly considered the vital aspects of the case, scrutinized and appreciated the evidence of witnesses, pre-trap and post-trap proceedings including material exhibits and arrived at right conclusion that the prosecution has proved the charges leveled against the accused beyond all reasonable doubt. It is also settled law that if the demand and acceptance of illegal gratification has been proved by the prosecution even through holding trap, the presumption under Section 20 of the P.C. Act can be invoked to the effect that illegal gratification was demanded and accepted as a motive or reward as contemplated under Section 7 of the P.C. Act. The defence has miserably failed to rebut the aforesaid presumption invoked against the appellant. Therefore, there is no illegality or infirmity in the impugned judgment of conviction and sentence of the appellant and no merits in this appeal which is fit to be dismissed.
Analysis, reasons and decision:
I have gone through the record of case along with impugned judgment in the light of contentions raised on behalf of respective parties.
The only point for determination in this appeal is “as to whether the impugned judgment of conviction and sentence of the appellant suffers from any error of law, which requires any interference in this appeal?”
Before imparting my verdict on the above point, it is pertinent to take brief resume of the evidence available on record for proper adjudication.
P.W.1 Budhadeo Majumdar, Joint Secretary, Est. Railway Board has accorded sanction order against the appellant and has deposed that as per Resolution (marked Ext.-X for identification) of Railway Board, he was the competent authority to sign the sanction order.
P.W.2 Dipti Bhengra, Sr. Scientific Officer, C.F.S.L. New Delhi had conducted examination of exhibits sent for chemical examination. This witness has stated that she cannot say whether the solution was touched by human hand.
P.W.3 Sushil Kongari is the complainant of this case and has supported the contents of the complaint and subsequent verification of the same followed by pre-trap demonstration by stating that limited examination for promotion was held on 12.09.2013 and viva voce was to be held on 13.09.2013 which was conducted by appellant by asking five to six questions and the candidates were directed to write their names in the answer sheets and the date of the viva voce test was directed to write 12.09.2013 instead of 13.09.2013. He further states that the complainant wanted to know the result and enquired from the appellant, then, appellant replied that you are failed and the appellant called the complainant on 24.09.2013 in D.R.M. Office and demanded Rs. 10,000/- from the complainant for passing in the limited examination but the complainant express his incapacity to give the same. The appellant told the complainant to give the money on 27.09.2013. On 24.09.2013, appellant gave a paper of 4/5 questions and complainant was asked to write the answers and directed to mention the date as 12.09.2013 instead of 24.09.2013. Then, the complainant made a complaint before the S.P., C.B.I., Ranchi and the complainant was interrogated and directed to come at 09:45 am on 27.09.2013. Accordingly, he reached on time and met with two independent witnesses i.e. P.W.-8 and P.W.-10 and other raiding members and pre-trap demonstration was completed and reached at the place of occurrence and were waiting for appellant who reached at 1:00 PM and complainant was told to come other side of the Road, the complainant went there and P.W.-8 Shadow witness followed the complainant. Then, complainant asked “Sir Mera Iss Baar Promotion Ho Jayega”. Then, appellant replied “Tum Paisa Laye Ho To Ho Jayega”. Upon this, complainant replied “Haa Paisa Laye Hai” and appellant demanded the money by extending his hand, complainant brought out money from his upper pocket and gave in the right hand of the appellant who kept the same in right pocket of his trouser. Complainant gave signal and then, CBI Team rushed and recovered the G.C. Notes by Anem Xaxa and tallied the same with the pre-trap memorandum and completed the further formalities of post-trap proceedings like washing the hands of the appellant in the sodium carbonate solution which turned pink and the same was sealed and prepared seizure list . He further deposed that shadow witness P.W.-8 overheard and saw the transaction between both.
In his cross-examination, this witness admits that he has not mentioned in the complaint that his Viva Test took place on 13.09.2013 and he mentioned the date as 12.09.2013 and again took test on 24.09.2013 and date was mentioned as 12.09.2013. He also admits that he had given statement before the CBI that limited examination held on 12.09.2013 and viva test should have been done on the same day but took place on 13.09.2013 but the fact that date was not mentioned as 13.09.2013 but mentioned as 12.09.2013 which was suppressed by the complainant. The complainant at para 67 has deposed that he had failed earlier also prior to the test held in the year 2013. He further states that appellant had failed the complainant and for that reason, he was sad. He further states that this time also, the complainant was afraid of being failed by the appellant. He also expressed his no knowledge as he was on leave that the result was submitted on 25.09.2013 or not but in the test taken by the appellant, all were passed. He has also declined that due to previous enmity of not being passed by the appellant, the complainant has falsely been implicated in this case.
P.W.-4 P. Uma Shankar Reddy, Sr. Section Engr. who has deposed that there was a limited examination for promotion of Grade-D to Grade-C in which, the complainant was also a candidate.
P.W.-5 Nandan Kr. Vishwakarma was posted as Technician-III in the office of appellant who had typed the question on the dictation of the appellant which was given to the candidates for answer.
P.W.-6 Om Prakash Hari was also the candidate of the examination for promotion and on 23.09.2013, appellant also demanded Rs. 10,000/- from this witness and told that if the same is not paid, he would be failed but this witness expressed his incapacity to pay the same.
P.W.-7 Ramesh was also the candidate of the examination for promotion and this witness states that when they met with the appellant, he told that you have failed and for getting passed, demanded Rs. 10,000/- for promotion.
In his cross-examination, he admits that he had not told anyone regarding demand of money by the appellant.
P.W.8 Panch Ratan Kumar Thakur is the independent cum shadow witness posted as Postman in G.P.P., Ranchi. This witness has deposed that he had gone with the complainant when the appellant had given signal form the other side of the road to come where complainant asked “promotion ho jayega”, then, appellant replied “haa ho jayega” and said that “Paisa Laye Ho” and appellant extended his right hand then complainant brought out the money from his pocket and gave to the appellant who kept in his right pocket of his trouser. Then, the complainant gave signal, all the raiding team rushed and caught the appellant.
P.W.9 Eric Ekka, posted in Personal Branch of DRM, Office, Hatia is a formal witness.
P.W.10 Anem Xaxa is the independent witness, being one of the members of the raiding party and has proved pre-trap demonstration and post-trap proceedings.
P.W.-11 Ashish Anand is the I.O. of this case who constituted the trap team with the members of CBI and two independent witnesses and all the formalities of pre-trap were completed and got signature of all the members and left for place of occurrence i.e. Khukhri Petrol Pump Doranda. He further deposed that Shadow witness P.W.-8 followed the complainant who asked the appellant that “mera promotion ho jayega”, then, appellant replied “ paisa laye ho to ho jayega” and appellant extended his right hand for money, the complainant took out the same and gave it on the right hand of the accused who kept the same in his right pocket of trousers. This witness claims that he had himself seen the transaction between both and on signal, they reached and competed post-trap proceedings.
P.W.-12 S.C. Jha is also the I.O. of this case who had taken statement of the complainant and independent witnesses and had sent the seized materials for examination to C.F.S.L. Delhi and had received the sanction order and submitted charge sheet.
On the other hand, defence has also examined two witnesses namely D.W.-1 Amir Khan and D.W.-2 Rajni who have deposed that they have only seen the accused being taken away but does not know who took away.
Before adverting to evaluate the aforesaid evidence available on record, it appears pertinent to extract the relevant provisions of the Prevention of Corruption Act, 1988.
(Prior to Amendment in the year 2018)
“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 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 five years and shall also be liable to fine.
Explanations —(a) “Expecting to be a public servant”. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b)“Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c)“Legal remuneration”. The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(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.
(e)Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.”
“13. Criminal misconduct by a public servant.-
(1)A public servant is said to commit the offence of criminal misconduct,-
(a)………………….
(b)………………….
(c)………………….
(d)if he,-
(i)by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii)by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;
(e)………………….
Explanation:- …………
(2)Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.”
It is also pertinent to mention relevant judgments of Hon’ble Supreme Court of India. The Apex Court in the matter of K. Shanthamma Vs. State of Telangana, [(2022) 4 SCC 574] and Neeraj Dutta Vs. State (Govt. of NCT of Delhi) [(2023) 4 SCC 731] has held that for recording conviction under Sections 7, 13(1)(d)(i) and (ii), the prosecution has to first prove the demand and acceptance of illegal gratification.
The relevant paragraph number 11 of K. Shanthamma (Supra) is reproduced as hereunder:-
11.In P. Satyanarayana Murthy v. State of A.P. [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 : (2016) 1 SCC (Cri) 11] , this Court has summarised the well-settled law on the subject in para 23 which reads thus : (SCC p. 159)
“23.The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.”
Similarly, the relevant paragraph number 88 of Neeraj Dutta (supra) is reproduced as hereunder:-
“88.What emerges from the aforesaid discussion is summarised as under:
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.
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.
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.
88.4.(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i)if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii)On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.
(iii)In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
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 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.
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.
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.
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.”
In the instant case, the evidence of witnesses as discussed above especially the evidence of P.W.-3, P.W.-6 and P.W.-7 reveals that these three witnesses were the candidates of that limited examination for promotion and all these three witnesses had appeared in the test and after completion of test, they had met with the appellant to know as to whether they have passed or not, upon this, the appellant had told them that they all have failed and demanded Rs. 10,000/- for passing them in the test and all have expressed their incapacity to pay the same but only P.W.-3 made a complaint before the S.P., C.B.I., with respect to demand of illegal gratification by the appellant but as to why other candidates i.e. P.W.-6 and P.W.-7 had not made any complaint with regard to allegation of demand of Rs. 10,000/- by the appellant before the C.B.I. is not clear and best known to them. It is also revealed that nowhere in the evidence of witnesses, it has come that complaint was verified by the C.B.I. officials by interrogating the complainant or other two candidates who have also been demanded Rs. 10,000/- by the appellant. It has also come on record that in the previous examination held before this limited examination for promotion, the complainant had failed and for that, he was sad and he was also afraid that this time also, the appellant would fail them. The complainant in his cross-examination has declined the suggestion of the defence that due to previous enmity, he has lodged this complaint. The above circumstance where three candidates were asked for illegal gratification as alleged but only one candidate moved before the S.P., C.B.I. complaining the illegal demand of illegal gratification by the appellant as alleged but other two not, leads to suspicion or malicious intent of the complainant to implicate the appellant falsely in this case due to previous enmity. It is also revealed that result had already been published on 25.09.2013 and the complaint was filed on 26.09.2013, it is utter surprising that when the result has been published and the complainant has been declared failed, then, why the appellant would demand any illegal gratification for passing the complainant in the limited examination wherein the appellant had no any power to change the result in order to get the appellant passed in the limited examination for promotion by taking the illegal gratification as alleged, and this fact goes to show the ill-motive of the complainant leading to filing a malicious complaint on very next date of the declaration of the result to teach a lesson to the appellant as the complainant has himself admitted that he was afraid of being failed by the appellant because he was also declared failed in previous limited examination and for that reason, he was sad. C.B.I. Officials, without verifying the complaint properly, completed the formalities of pre-trap and post-trap and arrested the appellant finding the G.C.Notes in the possession of the appellant.
It is settled law that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and 13(2) of the P.C. Act.
The Hon’ble Supreme Court of India in the case of P. Satyanarayana Murthy Vs. District Inspector of Police, State of A.P. and Anr. reported in (2015) 10 SCC 152 has held in para 22 and 23 are reproduced hereunder for ready reference:-
“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 Section 7 as well as Sections 13(1)(d)(i) and (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 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 absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
23.The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to provethe demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” (Emphasis Supplied)”
Therefore, there is complete absence of any demand of bribe made by the accused and its acceptance as alleged by the complainant.
In the above factual background, the ingredients of either offence under Section 7 & 13 (1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 is absolutely not attracted against the appellant. The learned trial Court has believed the testimony of the witnesses only on conjecturing and the observations of the learned trial Court are absolutely beyond the record. The totality of circumstances as proved by the prosecution clearly proves the innocence of the appellant.
In view of the above discussions and reasons, I find substance in the above points of argument raised on behalf of the appellant and merits in this appeal. Accordingly, impugned judgment of conviction and order of sentence of the appellant is hereby set aside and he is acquitted from the charges leveled against him.
The appellant is on bail, hence, he is discharged from the liabilities of bail bond. Sureties are also discharged.
In result, this appeal is allowed.
Pending I.A(s), if any, is also disposed of, accordingly.
Let a copy of this judgment along with Trial Court Records be sent back to the court concerned for information and needful.