Madhya Pradesh High Court
J.S. Yadav vs The State Of Madhya Pradesh Thr. on 30 May, 2024
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S. Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S. KALGAONKAR
CRIMINAL APPEAL NO. 130 OF 2016
BETWEEN:-
J. S. YADAV, SON OF SHRI R.D. YADAV,
AGED ABOUT 53 YEARS, RESIDENT OF
NEAR HUZRAT KOTWALI, GWALIOR,
PERMANENT RESIDENT OF 63,
PACHKUIYA, JHANSI, CURRENTLY
RESIDING AT POLICE LINE, GWALIOR
(MADHYA PRADESH)
.....APPELLANT
(SHRI ANIL KHARE- SENIOR COUNSEL WITH SHRI
MANISH SAXENA & SHRI PRIYANK AGARWAL- COUNSEL
FOR APPELLANT)
AND
STATE OF MADHYA PRADESH THROUGH
SPECIAL POLICE ESTABLISHMENT,
OFFICE OF LOKAYUKTA, BHOPAL, UNIT
GWALIOR (MADHYA PRADESH)
....RESPONDENT
(SHRI AJAY KUMAR CHATURVEDI- SPECIAL PROSECUTOR
FOR RESPONDENT- LOKAYUKTA ORGANIZATION)
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Reserved on : 03-04-2024
Pronounced on : 30 -05-2024
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This criminal appeal having been heard and reserved for
judgment, coming for pronouncement on this day, Justice Sanjeev S.
2
Kalgaonkar pronounced the following:
JUDGMENT
This Criminal Appeal under Section 374(2) of CrPC is filed assailing the judgment of conviction and order of sentence dated 23-01-2016 passed by Special Judge (Prevention of Corruption Act), Bhind in Special Case No.01 of 2015, whereby the appellant has been convicted and sentenced for the offence, as under:-
Conviction Sentence Fine Imprisonment (in
default of fine)
Section 7 of Prevention 5 years' RI Rs. 20,000/- 3 months' RI
of Corruption Act, 1988
13 of Prevention of 5 years' RI Rs. 20,000/- 3 months' RI
Corruption Act, 1988
It was further directed that both the sentences of imprisonment shall run concurrently.
(2) For the sake of convenience, appellant - J.S.Yadav shall be referred to as ''the accused'' and the Prevention of Corruption Act, 1988 shall be referred to as ''the Act, 1988''.
(3) The case of prosecution, in brief, is as under:-
(i) Complainant Rohit Awasthi runs his pickup vehicle No.MP 30GA-0721 for hire. Driver of vehicle Chhotu informed that the Station House Officer of Police Station, Phoop intercepted the vehicle near Nibua Check Post and threatened him that if he wishes to ply the vehicle on that road, he would have 3 to pay Rs.10,000/- per month. Complainant Rohit Awasthi submitted a written complaint to the Office of Lokayukt, Gwalior for taking action against the accused for illegal demand of money. Inspector Atul Singh, Lokayukta Organization handed over a voice recorder to record conversation regarding the demand of bribe money from him. Constable Pritam Singh was sent along-with the complainant for verification of the complaint.
(ii) Complainant Rohit Awasthi and his partner Arun Mishra submitted another complaint on 19-09-2013 to the effect that they had recorded demand of bribe money made by the accused on 19-09-2013 around 08:00 in the morning at the residence of accused. The voice recorder containing conversation submitted by complainant was played with the help of a Computer and a transcript was prepared. The complainant and his partner Arun Mishra identified their voices and the alleged voice of accused in the recorded conversation. The offence punishable under Section 7 of the Act, 1988 was registered against the accused based on written complaint and transcript of conversation about demand of illegal gratification by the accused.
(iii) The Collector, Gwalior on request of Lokayukta Organization nominated Murari Lal Silawat, Principal of Government Higher Secondary School, Ghatigaon and Anand Prakash Nayak, Principal, Government Higher Secondary School, Dabra- Morar as independent Panch witness. The Panch witness verified both the written complaints from complainant. Both the 4 independent witness noted the serial numbers of currency notes worth Rs.10,000/-. Constable Kamlesh Tiwari applied phenolphthalein powder on currency notes. After personal search of complainant, phenolphthalein powder coated currency notes were kept in the left side pocket of shirt of the complainant. Panchnama of entire proceeding was prepared. A trap party comprising Dharmveer Singh Bhadauria- DSP, Atul Singh- Inspector, RB Sharma- Inspector, Shailendra Govil- Inspector, Kavindra Singh Chauhan-
Inspector, Head Constable- Bahadur Singh, Constable- Pritam Singh, Constable- Pramod Singh Tomar, Constable- Girish Tripathi, Sunil Kshirsagar- Assistant Grade-III, Driver Balveer Singh and Naresh Ojha was constituted. Their hands were checked by dipping them in sodium carbonate solution. Panchnama of the entire preliminary proceedings was prepared. Complainant Rohit Awasthi was handed over a voice recorder with directions to record the conversation with accused at the time of handing over of tainted money.
(iv) On 20-09-2013 around 12:15 in the afternoon, the trap party reached Village Phoop. They stopped around 100 meters away from Police Station Phoop. Head Constable Bahadur Singh and Constable Pramod Singh Tomar were sent with the complainant in plain clothes as shadow witness. The complainant entered the premises of PS Phoop and went to the official residence of accused. The shadow witness stood around 30 meters away from residence of accused. After around five minutes, complainant came to the door of the house and gave 5 signal to the trap party. The independent witness and Officers of trap party proceeded towards the residence of accused. One person was seen running in police uniform in a lane behind the residence of accused. The complainant signaled that the accused had received the tainted money. The trap party approaching, the accused ran away by jumping backside wall. The accused was intercepted by Constable Pramod Singh Tomar and Constable Girish Tripathi around 100 meters away from his residence in the field. The accused was found wearing police uniform shirt and underpants. The accused was brought to the premises of Police Station. All the members of trap party dipped their hands in solution of sodium carbonate, there was no change in colour. Thereafter, the fingers of both hands of accused were dipped in the solution of sodium carbonate, the solution turned pink. The complainant informed that the accused had placed tainted money underneath the pillow on his bed. The accused confirmed his statement. The independent witness Anand Prakash Nayak removed the pillow. Tainted money was recovered from bedding on cot of the accused. The pillow and bed-sheet were also tested with solution of sodium carbonate. The serial numbers of currency notes were verified. The tainted money, the pillow and the bed-sheet were seized. Panchnama, seizure memos and memorandum of entire proceedings were prepared. Based on the investigation, prosecution for offence punishable under Sections 13(1)(d) and 13(2) of the Act, 1988 was added. The accused was arrested. 6
(v) After receiving sanction for prosecution, vide order dated 30-05-2014 of Department of Law and Legislative Affairs, Government of Madhya Pradesh, Final Report was submitted before the Special Court for Prevention of Corruption Act. Learned Special Judge framed charges for offences punishable under Sections 7 and 13 of the Act, 1988.
(vi) On completion of trial, after hearing both the parties, learned Trial Court convicted the accused for offences punishable under Sections 7 and 13 of the Act, 1988 and sentenced him, as mentioned herein-before. (4) The impugned judgment of conviction and order of sentence is assailed in present appeal on following grounds:-
(A) The complainant Rohit Awasthi (PW-1), his partner Arun Mishra (PW-
2) and driver Chhotu (PW-3) have denied demand of illegal gratification by the accused. The complainant has specifically denied recording any conversation about demand of illegal gratification. He has further denied that such recording was played in his presence. No voice identification test was carried out to prove the voice of accused in the alleged conversation. Therefore, in absence of demand, the offence punishable under Section 7 of the Act, 1988 was not made out.
(B) In the absence of proof of demand of illegal gratification, no offence punishable under Section 13 of the Act, 1988 was made out against the accused.
The Trial Court, based on assumption and presumption accepted the version of 7 prosecution even though the complainant himself did not support the prosecution.
(C) Learned Trial Court committed an error in relying on the fact that the accused had ran away on seeing the trap party. The said circumstance is not sufficient to convict the accused. The trial Court ought to have considered the same in light of the fact that complainant denied any demand by the accused.
On these grounds, it is requested that the accused be acquitted of the charge of offences punishable under Sections 7 and 13 of the Act, 1988. (5) Learned Senior Counsel for the appellant, in addition to the grounds mentioned in the memo of appeal, contended that the proof of demand of illegal gratification is sine qua non for convicting a person under Sections 7 and 13(1)
(d) read with Section 13(2) of the Act, 1988. The prosecution has completely failed to prove the demand of illegal gratification. Learned Senior Counsel further contended that there is no proof of acceptance of tainted money by the accused. No witness has seen the accused accepting the tainted money and keeping the same beneath the pillow. The circumstance relating to running away of accused wearing his underpants is doubtful for the reason of inconsistency between the versions stated by the witnesses. This circumstance alone is not sufficient to convict the accused. The accused deserves to be acquitted. (6) Per contra, learned Special Prosecutor for respondent- Lokayukta Organization, contended that the trial Court has committed no error in convicting the accused. The demand of illegal gratification is proved by the evidence on 8 record. The complainant, although turned hostile, could not explain his signature on the complaints and transcript about demand of illegal gratification. Further, recovery of tainted money from the bed of accused, testing of hands of accused by sodium carbonate solution and running of accused from the spot of incident in half-naked condition, cumulatively, established the case of the prosecution. Therefore, the appeal deserves to be dismissed.
(7) Heard both the parties. Perused the record.
(8) The points for determination in the present appeal are as under:-
(A) Whether the learned Trial Court has committed an error of law and fact in concluding that the accused has demanded illegal gratification of Rs.10,000/- per month from the complainant for plying bolero loading vehicle on road ?
(B) Whether the learned Trial Court has committed an error of law and fact in concluding that the accused has dishonestly obtained and received illegal gratification as public servant to forebear to perform his official duty?
(C) Whether the learned Trial Court has committed an error in concluding that the accused has committed criminal misconduct in the discharge of public duty as Station House Officer, PS Phoop ?
POINTS FOR DETERMINATION - REASONS FOR CONCLUSION (9) The alleged incident relates to 19-20th September, 2013. The Prevention of 9 Corruption Act, 1988 was amended vide Act 1 of 2014 (w.e.f. 16.01.2014) and Act 16 of 2018 (w.e.f. 26.07.2018).
(10) Section 7 of the Act, 1988 before the amendment, stood as under:-
7. Public servant taking gratification other than legal remuneration in respect of an official act.-
Whoever, being, or expected 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 organization, 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.
(11) Section 13 of the Act, 1988 was substituted by Act 16 of 2018 (w.e.f. 26.07.2018).
Section 13, before substitution, stood as under:-
10
13. Criminal misconduct by a public servant -- (1) A public servant is said to commit the offence of criminal misconduct, --
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without Consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the persons so concerned; or.
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or.
(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; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
[Explanation:- For the purposes of this section, "known sources of income"
means income received from any lawful source when such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant].
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. (12) Section 20 of the Act, 1988 was substituted by Act 16 of 2018 (w.e.f.
26.07.2018). Section 20, before substitution, stood 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 11 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-section (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.
(13) In view of the above provisions, to establish the guilt of public servant for offence punishable under Section 7 of the Act, 1988, the prosecution is required to prove following ingredients:-
(i) The accused is a public servant.
(ii) He has accepted or obtained or agreed to accept or attempted to obtain any gratification other than legal remuneration for himself or any other person.
(iii) As a motive or reward for doing or forbearing to do any official act or to show or forbearing to show any official or disfavour to any person in exercise of his official functions.
(14) Further, in order to establish the guilt of public servant for offence punishable under Section 13(1)(d) of the Act, 1988 the prosecution is required to prove following ingredients:-
(i) The accused is a public servant.12
(ii) He has obtained for himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as public servant or without any public interest.
(15) Section 7 of the Act provides for punishment when a public servant accepts or obtains or agrees to accept or attempts to obtain illegal gratification as a motive or reward for doing or forbearing to do his official act. The expression "accept" has different connotations than the expression "receipt". Section 7 of the Act does not provide for receipt of illegal gratification, but it provides for acceptance of illegal gratification. In order to convert the receipt of illegal gratification into "acceptance", it must be proved that the complainant has offered gratification other than legal remuneration to the public servant while demanding a favor from him and the public servant has received it. Thus, mere receipt of gratification would not amount to "acceptance" unless it is preceded by an offer of the complainant for a favor from public servant. The word "obtains"
in Sections 7 and 13(1)(d)(ii) of the Act, 1998 means to secure or gain something as a result of request to take and receive with a consenting mind. (16) In case of C.K. Damodaran Nair Vs. Union of India (1997) 9 SCC 477, the Supreme Court while interpreting Section 7 of the Prevention of Corruption Act, 1947 discussed the expression "accept" and "obtain" as under:-
"12. The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence, prosecution has to prove that the accused "obtained" the valuable thing or 13 pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c), (d) or (e) of the Act. "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either "acceptance" or "obtainment".
(17) Further, in case of Subash Parbat Sonvane Vs. State of Gujarat (2002) 5 SCC 86, the expression "accepts" and "obtains" were explained as under:-
In Sections 7 and 13(1)(a) and (b) of the Act, the Legislature has specifically used the words 'accepts' or 'obtains'. As against this, there is departure in the language used in clause (1)(d) of Section 13 and it has omitted the word 'accepts' and has emphasized the word 'obtains'. Further, the ingredient of sub-clause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under clause (ii), he obtains such thing by abusing his position as public servant; and sub-clause (iii) contemplates that while holding office as the public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under Section 13(1)(d), there must be evidence on record that accused 'obtained' for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest.
(18) In case of State of Kerala Vs. C.P. Rao (2011) 6 SCC 450, it was observed by the Supreme Court that in absence of any evidence to prove the payment of bribe or to prove that accused has voluntarily accepted the money knowing it to be bribe, mere recovery would not be sufficient to prove the charges under Sections 7 and 13(1)(d) of the Act, 1988.
(19) Complainant Rohit Awasthi (PW-1) stated that he runs bolero pickup no.
MP 07-GA-0721 for hire in partnership with Arun Mishra. His driver Chhotu 14 informed him that the police personnel were demanding money at the bus-stand Phoop. His partner Arun Mishra took him to Lokayukt Office, Gwalior. They met Inspector Atul Singh, who asked him to sign on blank papers. Inspector Atul Singh handed over a tape recorder to him and instructed him to record the demand of bribe by police personnel. One Constable Pritam Singh was also sent with him.
(20) Rohit Awasthi (PW-1) further stated that no police officer has made demand of bribe from him. His driver Chhotu informed that some police personnel had asked for bribe. He and his partner went towards the police-line but they could not meet driver Chhotu. No conversation could be recorded. Thereafter, he handed over the tape recorder to the Constable. No transcript was prepared before him.
(21) Rohit Awasthi (PW-1) further stated that he was called to the Office of Lokayukt, Gwalior. On instructions of his partner, he had given Rs.10,000/- to Inspector Atul Singh. One Constable coated currency notes with some white powder and kept currency notes in his pocket. The serial numbers of currency notes were recorded by one person. Thereafter, they went to PS Phoop along- with police officers from Lokayukt. He went to meet accused at his residence in the Campus of PS Phoop and shook hands with accused. Meanwhile, the police officers from Lokayukt arrived there.
(22) Rohit Awasthi (PW-1) specifically denied handing over the tainted money 15 to the accused. He had further denied the recovery of bribe money from accused. He was cross-examined by the prosecution under Section 154 of the Evidence Act, 1872. Although, Rohit Awasthi admitted signature on all the prosecution documents but he denied the contents of documents and the proceedings of trap. (23) Arun Mishra (PW-2), partner of the complainant and important witness of investigation proceedings, did not support the prosecution. He denied all the suggestions of the prosecution about his participation in trap proceedings and recovery of tainted money from the residence of the accused. Arun Mishra (PW-
2) admitted his signature on complaints (Ex.P5 and Ex.P6) but denied the contents thereof.
(24) Abhishek alias Chhotu (PW-3) stated that he was driver of bolero vehicle owned by Rohit Awasthi. The police personnel from PS Phoop used to check the documents of vehicle. He informed the vehicle owner Rohit Awasthi. Abhishek alias Chhotu resiled from his earlier statement that accused JS Yadav has threatened and demanded Rs.10,000/- in bribe, for permission to ply the vehicle on Bhind- Etawah Road. He specifically denied all the suggestions of the prosecution implicating the accused.
(25) Constable Pritam Singh (PW-10) stated that on 18-09-2013, Inspector Atul Singh handed over a voice recorder to Rohit Awasthi and instructed Rohit to record the conversation with the concerned TI regarding demand of bribe-money. The next day around 08:00 in the morning, he went to PS Phoop along-with Arun 16 Mishra and Rohit Awasthi. He stood outside on the road. The complainant went to the official residence of Station House Officer, PS Phoop. The complainant returned after quarter to an hour and informed that he had recorded the conversation. Thereafter, they returned to the Lokayukt Office at Gwalior and voice recorder was handed over to Inspector Atul Singh. (26) The evidence of Pritam Singh (PW10) reflects that he was not present at the time of alleged conversation between complainant- Rohit Awasthi and the accused about demand of bribe. Neither the conversation was recorded nor was the transcript of the conversation prepared in his presence. (27) Rohit Awasthi (PW-1) and Arun Mishra (PW-2) have specifically denied any conversation with the accused regarding demand of bribe. Rohit Awasthi (PW-1) has denied that voice recorder was played in his presence and he had identified voice of the accused. He further denied that the transcript (Ex.P7) was prepared on the basis of identification of voice by him. (28) Inspector- Atul Singh of Lokayukt Organization (PW-5) stated that he prepared the transcript of conversation recorded in voice recorder transcript (Ex.P7) which was signed by Rohit Awasthi and Arun Mishra. In paragraph 23 and 24 of his testimony, Atul Singh (PW-5) admitted that he was not acquainted with the voices recorded in the voice recorder. No sample voice was recorded and no voice identification test was conducted to confirm the voice of the complainant or the accused. No voice identification about recorded conversation 17 implicating the accused is available on record.
(29) There is no direct evidence about demand of bribe (illegal gratification) by the accused prior to filing of complaint Ex.P6. So far as demand of bribe at the time of acceptance of bribe money is concerned, the only witness of the transaction, Rohit Awasthi (PW1), has resiled from the allegations and did not support the prosecution. I.O. Atul Singh (PW5) stated that although Rohit Awasthi was handed over a voice recorder to record the conversation regarding payment and receipt of tainted money but no conversation was recorded as the complainant forgot to switch on the voice recorder. Thus, there is no direct evidence with regard to demand of bribe money even at the time of alleged trap proceedings.
(30) In case of B.Jayaraj Vs. State of Andhra Pradesh (2014) 13 SCC 55, the complainant did not support the prosecution, therefore, declared hostile. The prosecution did not examine any other witness present at the time when the money was allegedly handed over to the accused by the complainant to prove that money was given pursuant to the demand made by the accused. The Supreme Court held that when the complainant has disowned the allegation made in the complaint and in absence of other evidence with regard to proof of demand by the accused, the evidence of the complainant and the complaint could not be relied upon as proof of demand by the accused. It was further held that mere possession and recovery of currency notes from the accused without any proof of 18 demand would not establish the offence punishable under Sections 7 or 13(1)(d)
(i) and (ii) of the Act, 1988. It was also held that the presumption under Section 20 of the Act, 1988, could be drawn only if there was proof of "acceptance of illegal gratification" for which proof of demand was a sine qua non. (31) In case of P. Satyanarayana Murthy Vs. State of Andhra Pradesh (2015) 10 SCC 152, the complainant died before the evidence. The Supreme Court held that proof of demand of illegal gratification is gravamen for offences punishable under Sections 7 and 13(1)(d)(i) and (ii) of the Act, 1988. Mere acceptance of any amount by way of gratification or recovery thereof de hors the proof of demand would not be sufficient to bring home the charge under aforesaid sections of the Act, 1988. The proof of demand is a sine qua non and in the absence of proof of demand, legal presumption under Section 20 of the Act, 1988, cannot be raised.
(32) In case of Hazari Lal Vs. State (Delhi Administration) (1980) 2 SCC 390, the Supreme Court observed that it is not necessary to prove passing of money by direct evidence. The Court may presume the existence of any fact which happened in any course of natural events, human conduct and public business under Section 114 of the Evidence Act, 1872. The accused had taken the currency notes from his pocket and flung them across the wall. It was proved that the currency notes were obtained from the complainant a few minutes earlier. Considering the legal presumption, accused was held guilty for the offence. 19 (33) Relying on Hazari Lal (supra), the three Judge Bench of Supreme Court in case of N. Narsinga Rao Vs. State of Andhra Pradesh (2001) 1 SCC 691 held that once it was established that there was a demand or acceptance of illegal gratification and once the foundational facts were proved, the legal presumption for payment or acceptance of illegal gratification for motive or reward for doing or forbearing to do official act is applicable.
(34) In case of N. Narsinga Rao (supra), the complainant and other witnesses turned hostile and denied that appellant had demanded bribe. The appellant raised the defence that tainted currency notes were forcefully stuffed into his pocket. The Supreme Court observed that the circumstance preceding and succeeding the discovery of tainted currency notes from the pocket of appellant is sufficient to draw factual presumption that appellant had willingly received the tainted currency notes. It was further observed that since the prosecution has proved that appellant had accepted gratification. The Court was under legal obligation to draw statutory presumption that such gratification was accepted as a reward for doing the public duty. The two witnesses examined in defence were unable to rebut the presumption and, hence, accused was found guilty. (35) In case of Kishan Chand Mangal Vs. State of Rajasthan (1982) 3 SCC 466, it was observed that complainant's visit to Anti Corruption Bureau, his proposing currency notes, the Officer of Department arranging a trap and the Raiding Party going to the house of accused indicated that a prior demand for 20 payment was made by the accused.
(36) In case of Neeraj Dutta Vs. State (NCT of Delhi) (2023) 4 SCC 731, the Constitution Bench of the Supreme Court considered all these precedents to answer the reference.
Question for consideration:
45. On consideration of the aforesaid cases, the question framed for determination by the larger Bench is as under:
"(1) Whether, in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not 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 Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution?"
The reference was answered by holding in following terms:-
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 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 21 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 in turn 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. 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) 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. 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 point (e) as the former is a mandatory presumption while the latter is discretionary in nature.
89. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three judge Bench decisions of this Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or "primary evidence" of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns "hostile" is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases.
90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:
In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of 22 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.
(37) It is trite law that in a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from established facts as the circumstances lead to particular inference. The Court has to draw inference with respect to whether the chain of circumstances is complete and when the circumstances therein are collectively considered, the same must lead to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature and consistent with the hypothesis of the guilt of accused. The three-Judge Bench of the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra ((1984)4 SCC 116), held as under:-
152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh (AIR 1952 SC 349). This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh (1969 (3) SCC 198) and Ramgopal v. State of Maharashtra (1972 (4) SCC
625). It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):-
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be 23 fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
(38) Now, the evidence on record is analyzed to examine the proof of demand and acceptance of illegal gratification by circumstantial evidence. (39) Learned Special Prosecutor for the Lokayukt Organization submitted that Rohit Awasthi (PW-1), although did not support the prosecution, had accepted that he along with his partner Arun Mishra had approached Lokayukt Police with complaint regarding demand of money by police at Phoop. He further accepted receipt of voice recorded from Inspector- Atul Singh. He went to the residence of accused, thereafter he returned the voice recorder. He accepted his signature on transcript (Ex.P-3), complaint (Ex.P-5 and P-6) and FIR (Ex.P-8). Rohit Awasthi (PW-1) had stated that he handed over ten currency notes of denomination of 24 Rs.1,000/- to Inspector Atul Singh of Lokayukt Police to trap the police official who has demanded the bribe. The serial number of currency notes were noted in his presence and these currency notes were coated with phenolphthalein powder. He further admitted that the trap team went to village Phoop with him. He went to the residence of accused in the campus of PS- Phoop. Other members of the trap party were standing outside the police station. Rohit admitted his signature on all the proceedings of investigation and had offered no proper explanation with regard to his signature on relevant documents. Arun Mishra (PW-2) although did not support the prosecution, but stated that Rohit Awasthi had informed him that police of PS- Phoop is harassing, so he suggested to submit complaint to Lokayukt Police, Gwalior. He and Rohit went to office of Lokayukt Police at Gwalior. Application dated 18.09.2013 (Ex.P-5) is in his handwriting. The complaint (Ex.P-6) is also in his handwriting.
(40) Learned counsel for the State, referring to evidence of independent witnesses Anand Prakash Nayak (PW-4), Investigation Officer Atul Sigh (PW-5), Constable Kamlesh (PW-6), Constable Umendra Singh (PW-7) and Constable Girish Tripathi (PW-9), submitted that the prosecution has proved the sequence of events beyond doubt that after submission of the complaint (Ex.P-6) dated 19.09.2013, the contents of complaint were read-over and explained to Rohit Awasthi and Arun Mishra. Phenolphthalein coated currency notes were placed in the pocket of shirt of Rohit Awasthi in due compliance with the procedure. The 25 complainant was instructed not to touch currency notes before handing over to the accused and after handing over the tainted money make signal by touching his head. They reached village Phoop. The trap party stopped near PS- Phoop. They stayed 100 meters away from the residence of accused J.S. Yadav. Rohit went inside the residence of accused in the campus of PS- Phoop. After five minutes, Rohit signaled handing over of tainted money. The trap party reached the residence of accused. One person was seen running behind the government residence of the accused. He was caught and brought back. Accused J.S.Yadav was caught running wearing the shirt of uniform with underpants only. His hands were dipped in sodium carbonate solution. The colour of solution turned pink. The complainant informed that bribe money is kept underneath the pillow on the beddings. Independent witness Anand Prakash Nayak (PW-4) recovered the tainted money from the cot underneath the pillow. The serial numbers were matched. The pillow and bed-sheet were also dipped in sodium carbonate solution. The solution turned pink.
(41) Learned Special Prosecutor for the respondent/Lokayukt Organization relying on the judgment of the Supreme Court in case of Kishan Chand Mangal (supra) contended that aforestated circumstances are sufficient to prove existence of demand and acceptance of illegal gratification by the accused. (42) The factual scenario in present case is materially different. The observations on the facts in case of Kishan Chand (supra) are reproduced for 26 reference:-
11. It was next contended that once Rajendra Dutt is not available for evidence there is no evidence as to the demand of bribe on November 20, 1974, and it is not open to the Court to spell out the demand from the contents of Ext. P-12 12. It is undoubtedly true that Rajendra Dutt was dead before the commencement of trial. It is equally true that the F.I.R. lodged by him on November 22, 1974, cannot be used as substantive evidence nor the contents of the report can be said to furnish testimony against the appellant. Such an F.I.R. would not be covered by any of the clauses of ss. 32 and 33 of the Evidence Act and would not be admissible as substantive evidence. The question still remains whether there is any evidence of demand of bribe on November 20, 1974, in this case. A fact may be proved either by direct testimony or by circumstantial evidence If appellant did not visit the Factory of Rajendra Dutt on November 20, 1974, and made no overtures demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutt to the office of Dy. SP, ACD on November 22, 1974, his producing currency notes worth Rs. 150; a superior officer like the Dy SP, ACD, making all arrangements for the trap and the raiding party going to the house of the accused on November 22, 1974. The visit of Rajendra Dutt soon followed by the raiding party at the house of the accused on November 22, 1974, is admitted.
Coupled with this, the fact that Keshar Mal, P.W. 2 in his evidence stated that after Rajendra Dutt entered the room in which appellant was sitting, Rajendra Dutt on entering the room asked the appellant, 'Hallo, how do you do'. He further stated that the appellant replied, 'I am sick and suffering from cold'. He deposed that thereafter the appellant asked, 'Have you brought the money', whereupon complainant Rajendra Dutt replied, Yes, I have brought the money'. He further stated that thereafter Rajendra Dutt took out the amount of currency notes from his diary and gave the same to the appellant who took the amount and kept it under the pillow on the cot. If there was no prior demand the subsequent events remain unexplained as also the demand as deposed to by P.W. 2 Keshar Mal. But Mr. Anthony urged that this part of the evidence of Keshar Mal cannot be accepted because he has not stated this fact in his statement recorded in the course of investigation. Simultaneously it was pointed out that the other motbir Ram Babu is totally silent in his evidence about this conversation between the appellant and the complainant. Undoubtedly, the omission in the police statement of Keshar Mal and non-mentioning all these facts by the co-motbir would raise some doubt in the mind of the court about this conversation but as pointed out earlier there are tell-tale circumstances which do indicate that there must have been a demand and, therefore, these circumstances as herein before set out will render support to the statement of Keshar Mal that the demand at the time of visit of Rajendra Dutt must be pursuant to earlier demand by the appellant. Therefore, it is not proper to say that there is no evidence of the demand of bribe as on November 20, 1974. (Emphasis added) (43) Learned Trial Court in Para 34 to 42 of the judgment has relied on the following circumstances with regard to proof of demand and acceptance of 27 illegal gratification by the accused-
(i) The complainant, who was resident of Bhind, had approached the Office of Lokayukt at Gwalior and submitted complaint against the accused.
(ii) Complainant has admitted his signature on application (Ex.P.5 and Ex.P6). Independent witness Anand Prakash Nayak (PW-4) read over and explained the contents of application to the complainant. The application contained allegations concerning demand of Rs.10,000/- by the accused.
(iii) Independent witness Anand Prakash Nayak (PW-4) and police Officials from Lokayukt Organization, PW-5 to PW-13 had no enmity with the accused, therefore, there is no reason to disbelieve their testimony.
(iv) The contents of complaints alleging demand of bribe by the accused are more believable than the oral testimony of complainant Rohit Awasthi (PW-1), his partner Arun Mishra (PW-2) and driver Abhishek alias Chhotu (PW-3).
(v) The Investigation Officer- Atul Singh (PW-5) has proved the transcript of conversation (Ex.P7). He has further stated that complainant has verified the voice in conversation.
(vi) The seizure memo (Ex.P17) mentions that the accused had received bribe money from the complainant and kept it underneath the pillow on his bedding. The accused has not objected that the currency notes recovered 28 from his bedding were not bribe money. He has not explained recovery of tainted money from his bedding at his residence.
(vii) No explanation is given by the accused as to why he ran away from his residence wearing uniform shirt and underpants only. (44) Learned trial Court concluded aforementioned circumstances indicate that the accused is guilty. Learned trial Court proceeded to hold that the demand and receipt of bribe money were proved beyond doubt, therefore, the presumption under Section 20 of the Act, 1988 would apply.
(45) The circumstances appearing in evidence and relied upon by learned trial Court to reach the conclusion of guilt against the accused are being considered.
(I) Demand of illegal gratification:-
(46) Learned Trial Court has relied upon the contents of applications (Ex.P5 and Ex.P6). The applications are in nature of complaint given in writing to the Special Police Establishment of Lokayukt to investigate into the allegations. The applications are not substantive evidence of the facts stated therein. The applications, at the most, may be used to corroborate the testimony of complainant under Section 157 of the Indian Evidence Act, 1872. Similarly, the transcript Panchnama and seizure memos are memorandum of the proceedings, which require proper proof of fact stated therein by evidence at the trial.
Therefore, the conclusion of trial Court in Para 35 and 37 of the judgment is erroneous that the documents mentioning demand of money are sufficient to infer 29 demand of illegal gratification against the accused.
(47) Learned Trial Court relied on the transcript (Ex.P7) on the basis of statement of Atul Singh (PW-5) and Umesh Singh (PW8) that the complainant has identified the voice in recorded conversation but complainant Rohit Awasthi (PW-1) specifically denied identification of voice in conversation. In such a scenario, it was expected from the prosecution to establish the voices in the conversation by the voice identification test which was never conducted. Therefore, the learned Trial Court erred in drawing the inference that the transcript (Ex.P7) may be relied upon as the proof of demand of bribe money.
(II) Acceptance of tainted money :-
(48) Rohit Awasthi (PW-1) has denied handing over phenolphthalein coated currency notes to the accused. He denied all the suggestions of prosecution in this regard. No shadow witness accompanied Rohit to the residence of accused. The independent witness Anand Prakash Nayak (PW-4) stated that it was complainant Rohit who informed that the tainted money is kept underneath the pillow on bedding.
(49) I.O. Atul Singh (PW-5) states that when he asked the accused about the tainted money, the accused informed that he had kept it on his bedding underneath the pillow but in cross-examination Para-30, Atul Singh conceded that this fact is not mentioned in Panchnama of the proceeding (Ex.P12).
Constable Pritam Singh (PW-10) has specifically stated that when Inspector Atul 30 Singh asked the accused about bribe money, he did not state anything. The complainant informed that bribe money is kept underneath the pillow on bedding of accused.
(50) Thus, no inference can be drawn that the tainted money was recovered at the instance of the accused. Rather, it was recovered at the instance of the complainant, who was alone in the room, when the trap party entered the residence of accused. The complainant had opportunity to plant the tainted money in the bedding of accused. In such a scenario, definite inference cannot be drawn that the accused has received tainted money and kept it underneath the pillow in his bedding.
(51) Learned Special Prosecutor for the respondent- Lokayukt Organization contended that the accused was caught red-handed. When his hands were dipped into sodium carbonate solution, the solution turned pink. The FSL report substantiates finding of traces of phenolphthalein powder on the hand of the accused. Therefore, receipt of the tainted money by the accused is well- established.
(52) Per contra, learned Counsel for the appellant referred to the statement of Rohit Awasthi (PW1) in Para 4, Para 10, Para 21 and submitted that Rohit Awasthi has stated that when the phenolphthalein coated currency notes were kept in his pocket, he touched them for verification. When he met the accused, he shook hands with him. The chemical on the notes might have transmitted from 31 his hands to the hands of accused. Learned Counsel for the appellant submitted that this statement of the complainant was not challenged by the prosecution. Therefore, the finding of traces of phenolphthalein on the hands of accused does not lead to irresistible and final conclusion that he has received the trained money.
(III) Escape of accused from his residence :-
(53) Learned Special Prosecutor for the respondent- Lokayukt Organization referring to Para 40 and 41 of the judgment, contended that there was no explanation by the accused with regard to his escape from residence and later being apprehended wearing the uniform shirt and underpants. This circumstance leads to the inference of guilty mind on part of the accused. (54) Per contra, learned counsel for the appellant contended that the complainant had grudge against the police officers for stopping his vehicle to check the documents. Complainant entered the residence of accused followed by other officials. Accused fearing his safety and to avoid false implication escaped from his house. Therefore, another possible hypothesis cannot be ruled out that the accused ran away wearing the uniform shirt and underpants to protect himself from false implication. Learned counsel for the appellant further pointed out certain inconsistencies in the statements of prosecution witnesses with regard to escape and apprehension of the accused.
(55) Be that as it may, the aforestated discussion leads to the conclusion that the 32 prosecution failed to establish demand of illegal gratification by the accused. The stray circumstance relating to escape of accused is not sufficient to infer his guilt.
There exists another hypothesis consistent with the innocence of the accused. No conclusive inference can be drawn that the accused has accepted or obtained illegal gratification. The learned trial Court committed error in concluding that the statutory presumption under section 20 of the Act, 1988 would apply. The chain of evidence is not complete to show that in all human probabilities, the accused has demanded and accepted illegal gratification as motive or reward to forbear to discharge his public duty of checking the vehicles. The circumstances established by the evidence do not lead to irresistible and definite conclusion of guilt of the accused.
(56) Thus, the prosecution had failed to prove beyond reasonable doubt that accused demanded illegal gratification of Rs.10,000/- per month from the complainant for plying Bolero vehicle on road and dishonestly obtained gratification other than legal remuneration as motive or reward to forbear to perform his public duty. Learned trial Court committed error of law and fact in convicting appellant/accused JS Yadav for offences punishable under Sections 7 and 13(1) (d) read with 13(2) of the Act, 1988.
(57) Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence dated 23-01-2016 passed by the Special Judge (Prevention of Corruption Act) Bhind in Special Case No. 01 of 2015 is hereby set aside. The 33 appellant is acquitted of charge of offence punishable under Sections 7 and 13(1)
(d) read with 13(2) of the Act, 1988. He shall be set at liberty forthwith. His personal bond and surety bond are discharged. The fine amount, if deposited, shall be refunded.
A copy of this judgment along with the record of trial Court be forwarded to the trial Court.
(SANJEEV S. KALGAONKAR) JUDGE 30.05.2024 MKB/Avi/Vijay MAHEND Digitally signed by MAHENDRA BARIK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=8c6d4d6122d7ee987e457a3bec5922ca cbc050c998981397a35d9758a2b55074, RA BARIK postalCode=474001, st=Madhya Pradesh, serialNumber=AB90F893988F10D718DA01F806 5D87F25DDC9B6C8C3FF0E5E280DD36D476F6B A, cn=MAHENDRA BARIK Date: 2024.06.02 02:11:53 +05'30'