Allahabad High Court
Banshraj vs State Of U.P. Thru. Superintendent Of ... on 16 March, 2023
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 24.11.2022 Delivered on 16.03.2023 Case :- CRIMINAL APPEAL No. - 1057 of 2015 Appellant :- Banshraj Respondent :- State Of U.P. Thru. Superintendent Of Police C.B.I/Acb Lko. Counsel for Appellant :- Purnendu Chakravarty,Ramesh Chandra Pathak Counsel for Respondent :- Bireshawr Nath,Shiv P. Shukla Hon'ble Dinesh Kumar Singh,J.
1. The present criminal appeal under Section 374(2) CrPC has been filed against the judgment and order dated 31.08.2015 passed by the learned Special Judge, CBI, Court No. 4, Lucknow in Criminal Case No.01 of 2011 (Computerized No.1600001 of 2011) (State through Central Bureau of Investigation, Lucknow Vs. Banshraj), arising out of R. C. No. 0062011A0001/2011, under Sections 7 and 13(2) read with Section 13(i)(d) Prevention of Corruption Act, 1988, (hereinafter referred to as the "PC Act, 1988") Police Station C.B.I./A.C.B., Lucknow by means of which the accused-appellant has been convicted and sentenced as follows:-
i. U/s 7 PC Act, 1988 three years rigorous imprisonment and fine of Rs.30,000/- and, in case of default in deposition of the fine amount, six months additional rigorous imprisonment; and ii. U/s 13(2) read with Section 13(i)(d) PC Act, 1988 four years rigorous imprisonment and fine of Rs. 40,000/- and in case of default in deposition of the fine amount, one year's additional rigorous imprisonment.
It has also been directed that both the sentences would run concurrently and the period spent in jail shall be adjusted in the sentence awarded.
2. Prosecution case, in FIR, was that accused-appellant, Banshraj, who was posted as Senior Executive Engineer (Electrical & Mechanical ) (hereinafter referred to as the "E&M), Kakari Project, National Coal Limited, Sonbhadra, Uttar Pradesh (hereinafter referred to as the "NCL") used to harass complainant, R.K. Mittal by asking for bribe for the work of dismantling and creating HT overhead line.
3. The tender was floated when required at mines in the area of the Kakari Project. The Technical Committee Member was Mr. P. Rai, Chief Engineer (Mines), but in his absence, the accused-appellant, being the Senior Executive Engineer (E&M), acted as Technical Committee Member. The Tender Committee Recommendations (hereinafter referred to as the "TCR") were made by the accused-appellant.
4. Complainant, R.K. Mittal was L-1. The accused-appellant allegedly asked the complainant to bring Rs. 2,600/- otherwise, he would disturb working of the complainant. The accused-appellant allegedly also told the complainant that his Rs.7,000/- was balance for the previous TCR and asked the complainant to bring the previous balance amount of Rs. 7,000/- as well.
5. The complainant gave a complaint to the CBI/ACB on 13.01.2011 in respect of the said demand of bribe by the accused-appellant.
6. After verifying the complaint, the case was registered by the CBI. During pre-trap and post-trap proceedings, the accused-appellant was arrested on 18.01.2011, at around 2 p.m., demanding and accepting Rs.9,600/- from the complainant, which was for making TCR in favour of the complainant and Rs. 20,000/- in respect of the payment made against the bills for the work done by the complainant.
7. After completing investigation, charge-sheet was filed against the accused-appellant under Section 7 and Section 13 (2) read with Section 13(i) (d) PC Act, 1988. The cognizance was taken on the said charge-sheet on 06.05.2011 by the learned trial Court and accused-appellant was summoned to face trial.
8. Charge was framed on 08.07.2011 for the offence under Section 7 read with Sections 13(2) and 13(i)(d) PC Act, 1988.
9. The accused-appellant denied the charge and claimed trial.
10. The prosecution, to prove its case, examined 9 witnesses and proved 20 documents.
11. The accused-appellant, in his defence, examined 5 witnesses.
12. Statement of the accused-appellant was recorded under Section 313 CrPC wherein he had said that the sanction for his prosecution was given without application of mind and, denied that he demanded and accepted any bribe from the complainant. He had also said that pre-trap and post-trap proceedings were illegal and denied the evidence brought on record by the prosecution. He also said that the CBI, after arresting him, got his signatures on post-trap memo (Exhibit Ka-3) and other documents. In respect of recovery of the bribe amount of Rs. 29,600/- from him, the accused-appellant said that it was wrong and when he was going to take lunch by his jeep then the complainant, who met him on the way, said that "I had kept in the drawer sir". Later on, he could realize that the complainant had planted the money and, he was arrested by the CBI after getting off the jeep. No money was recovered from him. After his arrest, signatures of the witnesses were obtained on papers. He denied his signatures on post-trap memo, D-6 (Exhibit Ka-4). The accused-appellant also denied the recovery of the bribe amount from drawer of his office-table by Ram Narain Duble (PW-4) and, also denied the solution turned pink after dipping his fingers. He denied Exhibits Ka-2 to Ka-6 and material exhibits (ME-1 to ME-10). The accused-appellant denied the Memorandum D-12 (Exhibit Ka-20) prepared by Pramod Kumar Singh, PW-3. He said that neither voice recorder of pre-trap and post-trap was produced nor proved in the Court. Neither the TLO nor the CBI had submitted any certificate under Section 65-B of the Evidence Act in respect of the electronic evidence.
13. In his defence, the accused-appellant produced documents and proved the same.
14. Learned trial Court, after analyzing the evidence in detail found the charge proved and held the accused-appellant guilty for the offence under Section 7 read with Sections 13(2) and 13(i)(d) PC Act, 1988 and convicted and sentenced him, as mentioned above.
15. On behalf of the accused-appellant, Mr. Purnendu Chakravarti has submitted that the prosecution has failed to prove the demand, acceptance and recovery of the bribe amount from the accused-applicant; it is sine-qua-none to hold an accused guilty for the offence under Section 7 and Section 13(2) read with 13(i)(d) PC Act,1988 to prove the demand, acceptance and recovery of the bribe amount from the accused; the accused-appellant was not in a position to favour the complainant; PW-5, Vasudeo Adya, who was posted as Deputy General Manager (Finance) at NCL Kakari Project, had explained the entire procedure for work contract and, its execution at NCL; PW-5, in his evidence, said that the bills of the complainant, the contractor, was signed on 10.12.2010; Jag Mohan, Fitment In-charge, checked the bills and signed the same; after processing the bills by Jag Mohan, the accused-appellant, having supervisory capacity, also checked and signed the bills on 10.12.2010; this PW-5 had proved the Document No. 15 (Work Order allotted to the complainant) and Document No. 14 (Bills submitted by the complainant).
16. On behalf of the accused-applicant, Mr. Chakravarti, learned counsel, has further submitted that D. N. Mandal, DW-2, posted in NCL Kakari Project had proved Document No.A94/4 to A94/25. These documents are in respect of TCR and credentials of M/s Vimal Electrical Works, the proprietorship concern of the complainant. This witness has proved the duty-chart, TCR and credentials, submission of the work order and bills for verification, cancellation and show-cause-notices to M/s Vimal Electrical Works for obtaining work order on the basis of forged documents, debarring and blacklisting of M/s Vimal Electrical Works from getting tender of NCL. DW-3, Ram Niwas Sharma, posted at NCL Kakari Project, in his statement recorded on 13.04.2015, proved the document A94/12 (Exhibit Kha-12, which is order of blacklisting of M/s Vimal Electrical Works. This defence witness had also said that he was present on the site-office on 18.01.2011 and he, along with the accused-appellant, left for taking lunch at 2 p.m. from the site-office. The site-office remained open 24 hours. The accused-appellant went to his jeep and he, accompanied him, towards this witness's motorcycle. The complainant went inside the site-office and came out within five minutes. He had call on his mobile. Thereafter, the complainant came towards the accused-appellant and started talking to him. In the meantime, the CBI officials also arrived and took the accused-appellant to site-office. The said witness had specifically denied any demand and acceptance of any bribe-amount made by the accused-appellant from the complainant.
17. Mr. Chakravarti has drawn attention of this Court to the evidence of Suresh Singh, DW-4, posted at NCL Kakari Project. He was also PW-10 in the list of witnesses filed by the CBI along with the charge-sheet. However, the CBI did not examine the said witness. The said defence witness had explained the events in chronological order which took place on 18.01.2011. He had said that DW-3, Ram Niwas Sharma was present with the accused-appellant outside the site-office during lunch hour. Presence of this witness was testified from the attendance-sheet (Paper No. A94/2). DW-5, Lalji, who was driver at NCL Kakari Project, also explained chronological events of 18.01.2011. This witness was in the list of prosecution witnesses at serial no. 8 in the charge-sheet, but he was also not examined by the CBI. This witness, in his deposition, had said that on 18.01.2011 he was taking the accused-appellant in the government vehicle for lunch at 2 p.m. to his residence. When the vehicle had moved 14-15 meters then the complainant, along with another person, came there and parked the motorcycle in front of the jeep, and started talking to the accused-appellant and said that "sir I have kept in the drawer'. At that time, 4-5 other persons came there and the accused-appellant was taken off the jeep and taken to the site-office. Later on, he could know that these 4-5 persons were from CBI. He denied to have recorded his statement recorded under Section 161 CrPC during investigation. He also said that the CBI had never called him in office of the General Manager for investigation or recorded his statement. He said that only once, he was called in office of the General Manager for identifying the voice. When the voice was played in laptop then this witness told that the voice was not clear and, therefore, he was not in a position to identify the same. He said that though he was working with the accused-appellant, but he could not recognize the voice of the accused-appellant.
18. On behalf of the accused-appellant, Mr. Chakravarti has further submitted that there is material contradictions in the evidence of PW-2 and PW-4, shadow-witness, Ram Narain Duble. PW-2, in his examination, had deposed that he had kept the bribe-amount himself, as directed by the accused-appellant, in the drawer of office-table of the accused-appellant. The accused-appellant closed the drawer of the table from his right-hand. However, PW-4, shadow-witness, in his examination, said that when the accused-appellant was arrested, he came to the site-office and found diary inside the drawer of the office-table and the bribe-amount was kept on the diary and drawer of the table was half-opened. Mr. Chakravarti has also submitted that the accused-appellant was intercepted by the CBI, while he was going to have lunch by his official vehicle. Spontaneous reaction was "maine koi paise nahi liya hai". This spontaneous statement cannot be said to be an afterthought, rather it would show innocence. The manner, in which the car was topped, would create a grave suspicion on conduct of the complainant. If the accused-appellant had accepted the bribe-amount from the complainant then why he would leave the bribe-amount in the drawer that was half-opened, while he was going for lunch. He has, therefore, submitted that the prosecution has failed to prove the case beyond reasonable doubt against the accused-appellant. The conduct of the complainant had not been considered by the trial Court.
19. On the other hand, Mr. Shiv P. Shukla, learned counsel for the respondent - CBI, has submitted that the prosecution has proved the case against the accused-appellant beyond reasonable doubt by leading cogent and credible evidence. It has been further submitted that the demand, acceptance and recovery are fully proved in the present case. Minor contradictions, in the testimony of the witnesses, are embellishment and not material to destroy the present case. The trial Court has considered each & every evidence in detail while convicting the accused-appellant. The prosecution has proved the case beyond reasonable doubt and the judgment and & order appealed does not suffer from any illegality or perversity, either in appreciation of evidence or in law and, therefore, the appeal, having no merit and substance, is liable to be dismissed.
20. The question, which falls for consideration in this appeal, is that whether the prosecution has been able to prove the demand and acceptance of the bribe-amount by the accused-appellant. Provisions of Sections 7, 13(i)(d) and 13(2) of the PC Act, 1988 which are relevant, are extracted hereunder:-
"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 1[three years] but which may extend to 2[seven 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, be 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.--For the purposes of this section, "known sources of income" means income received from any lawful source and 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 be not less than 3[four years] but which may extend to 4[ten years] and shall also be liable to fine."
21. Section 20 PC Act, 1988 reads as under:-
"20. Presumption where public servant accepts any undue advantage.--Where, in any trial of an offence punishable under section 7 or under section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under section 11."
22. Plain words of the Statue would meant that if it can be proved that a public servant has received illegal gratification, Section 20 PC Act,1988 brings a statutory presumption that he has received the same with an illegal motive as laid down in Section 7 PC Act, 1988. This shifts burden of proof upon the accused. He has to discharge the burden that what has been received is for a valuable consideration and not for illegal gratification. The Statute does not provide for 'demand' of illegal gratification to constitute an offence under the PC Act, 1988. It has virtually been inserted into the Statute by the Supreme Court by an interpretative process. 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.
23. Corruption by a public servant is an offence against the State and the society at large. The Supreme Court in 2022 SCC OnLine SC 1724 (Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) has answered the reference that "whether circumstantial evidence can be used to prove demand of illegal gratification". In the said case, the Constitution Bench has held that In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution. Paragraph-7 of the said judgment would read as under:-
"7. It was further observed with reference to Ram Krishan v. state of Delhi, AIR 1956 SC 476 ("Ram Krishan"), that for the purpose of Section 13(1)(a) and (b) of the Act:
"It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour."
24. In the event of complainant turns hostile, or dies or is unable to give his evidence during trial, the demand of illegal gratification can be proved by leading evidence of any other witness, who can again lead any evidence, oral or documentary, or prosecution can prove the case by circumstantial evidence. In such a situation, the trial does not abate nor it would result in an order of acquittal of the accused-public servant. The Supreme Court has held in several judgments that offer of the bribe and demand by the public servant have to be proved by the prosecution as a fact in issue. 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. The proof of demand of bribe by public servant and its acceptance by him is sine-qua-none for establishing the offence under Section 7 PC Act, 1988. The failure of the prosecution to prove the demand or illegal gratification would be fatal and mere recovery of the amount from the accused would not constitute an offence under Section 7 or 13 PC Act, 1988 and it would not entail his conviction thereunder as held in (2022) 4 SCC 574 (K. Shanthamma Vs. State of Telangana).
25. The accused-appellant was posted as Manager (E&M) at NCL Kakari Project, Sonbhadra. The complainant, PW-2 was a contractor in the NCL. He used to take electric contract. Allegedly, the accused-appellant would demand bribe-amount for preparing the TCR and making payment of the work done. PW-2, the complainant, in his evidence, has fully proved the demand of Rs. 2,600/- made by the accused-appellant, which is 1% of the current TCR i.e. Rs.2,67,270/- and Rs.7,000/- in respect of some old TCR and Rs. 20,000/- for the payment made to the complainant for the work done by him. The complainant had withdrawn this amount from his two bank-accounts which fact got proved. The accused-appellant on 18.01.2011, when the complainant reached to office along with shadow witness, Jai Kumar Bansal (PW-7), enquired from the complainant (PW-2) whether the complainant had brought the money, then the complainant said ''yes' and on asking by the accused-appellant, he kept Rs. 29,600/-, the bribe-amount, in the drawer of the office-table of the accused-appellant. Evidence of this independent shadow witness had fully corroborated the testimony of the complainant. The recovery of the bribe-amount from drawer of office-table of the accused-appellant creates no doubt. The bribe-amount was recovered by Ram Narain Duble. The other evidence, such as wash of hand and cloth turning pink, also fully support the recovery of the tainted money from the drawer of office-table of the accused-appellant, which was under his control.
26. The accused-appellant refused to give his voice sample for matching the voice recorded in the voice-recorder, which was kept in the pocket of the complainant, PW-2. When the CD was played, the complainant, PW-2 completely recognized his voice and voice of the accused-appellant demanding the bribe-amount. The testimonies of PW-2, PW-4 and PW-7, regarding demand and acceptance of the bribe-amount, had remained intact. Whether the drawer was completely closed or half opened, would not make much of difference to brings home the charge against the accused-appellant. This Court cannot substitute its reasoning for not taking the bribe-amount home after receiving the same from the complainant, PW-2. Why the accused-appellant did not take the bribe-amount home, it was for him to decide, and the Court absolutely cannot presume the reasoning for such an action by the accused-appellant. However, since the accused-appellant did not take the bribe-amount home that would not falsify the evidence of the complainant and the independent witnesses, including the recovery witness.
27. The conviction of an accused cannot be founded on the basis of inference, but the prosecution has to prove the offence against accused beyond reasonable doubt by leading cogent and credible evidence. In the present case, each link of chain of events points out towards the guilt of the accused-appellant by evidence led in that regard by the prosecution which satisfies that the chain was complete. The Supreme Court in (1996) 11 SCC 720 (M.K. Harshan Vs. State of Kerala) in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused, who denied the same and said that it was put in the drawer without his knowledge in paragraph-8 has held as under:-
". The plea of the accused is that he was not in the office prior to 4 p.m. and he only entered the office at about 4 p.m. and when he was in his seat, the trap party entered his office and which plea is fairly suggestive that without his knowledge the tainted money must have been put in the drawer of his table. We find some anxiety and an attempt was there on the part of the DSP as well as the other trap witnesses to show that the accused had handled the notes either before they were put into the drawer or thereafter thereby trying to connect him directly with the receipt of the tainted money. Whereas the plea of the accused is that the same has been put in his drawer without his knowledge. PW 1, as mentioned above, deposed that PW 11 asked the accused to touch the currency notes and thereafter his fingers were dipped into the liquid which turned pink. It is significant that PW 8, another Vigilance Officer, who was in the company of PW 11 throughout, deposed that after the necessary signals were given, the trap party proceeded. PW 1 came out, met them and told that the accused had accepted the money and that he had put it in the left top drawer of the table and hearing this the trap party entered the room of the accused. His evidence suggests that PW 1 told him that the accused accepted the money and he himself put the money in the left top drawer of the table. PW 11 also deposed that PW 1 came out and told them that he has given the currency notes to the accused as bribery and it was kept in the left drawer and thereafter the trap party entered the office. These two witnesses also deposed that the accused was asked to dip his right hand in the liquid in the glass and when he did so it became pink in colour. Therefore, according to their versions, as informed by PW 1, the accused himself received the amount and put the same in the drawer and consequently when he dipped his fingers the solution became pink. But the positive case of the prosecution on the other hand as narrated by PW 1 is that the accused never touched the currency notes and it was he who put them in the table drawer. It may be noted that PW 3, a constable, was sent along with PW 1. He was asked to wait outside and relay the signal. PW 11 admitted in the cross-examination that PW 3 could see what was happening in the office of the accused, but PW 3 does not say anything about having seen anything happening in the office of the accused. He does not even say that when PW 1 went inside with the money, he saw the accused in his seat. In the light of these conflicting versions and suspicious features on this crucial aspect, the plea of the accused that the notes were put in the drawer without his knowledge, does not appear to be improbable. In any event, PW 1's evidence for the above said reasons, does not appear to be wholly reliable. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW 1. Since PW 1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW 1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Act, particularly when the version of the accused appears to be probable."
28. Here the evidence of PW-2 and PW-4 would suggest that the accused-appellant demanded the bribe-amount and he accepted by asking the complainant to keep it in the drawer of the office-table which the accused-appellant himself opened and, therefore, it is not mere demand, but also acceptance of the bribe-amount by asking the complainant to put the same in the drawer. The evidence of PW-2 does not suffer from any infirmity in this regard.
29. In (2009) 3 SCC 779 (C.M. Girish Babu Vs. CBI, Cichin, High Court of Kerala) the Supreme Court has held that mere recovery of money from the accused itself is not enough in absence of substantive evidence for demanding and accepting the money. The Supreme Court has held that there was no voluntary acceptance of the money, knowing it to be bribe. The Supreme Court, after analyzing the evidence on record, in paragraphs 18, 19 and 20 of the said judgment has held as under:-
"18. In Suraj Mal v. State (Delhi Admn.) [(1979) 4 SCC 725 : 1980 SCC (Cri) 159] this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
19. The learned counsel for CBI submitted that the onus of proof was upon the appellant to explain as to how he came into possession of the amount recovered from him during the trap. The argument of the learned counsel is obviously based on Section 20 of the Prevention of Corruption Act, 1988 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 inference of corruption may fairly be drawn."
20. A three-Judge Bench in M. Narsinga Rao v. State of A.P. [(2001) 1 SCC 691 : 2001 SCC (Cri) 258] while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p. 700, para 24) "24. ... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra [(2000) 8 SCC 571 : 2001 SCC (Cri) 34] .) The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: (Madhukar case [(2000) 8 SCC 571 : 2001 SCC (Cri) 34] , SCC p. 577, para 12) ''12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
30. The said principle is not new one, but a reiteration of the principle enunciated by the Supreme Court in (1979) 4 SCC 725 (Surajmal Vs. State (Delhi Administration).
31. In (2001) 1 SCC 691 (M. Narsinga Rao Vs. State of A.P.), while dealing with sub-section 1 of Section 20 PC Act, 1988 in respect of presumption where the public servant accepts gratification other than legal remuneration, in paragraphs 14, 15, 16, 17, 18 and 19 it has has held as under:-
"14. When the sub-section deals with legal presumption it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
15. The word "proof" need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. [(1911) 1 KB 988 : 1911 WN 53] observed like this:
"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion."
16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.
17. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled.
18. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra [(1998) 7 SCC 337 : 1998 SCC (Cri) 1625] : (SCC p. 339, para 5) "A presumption can be drawn only from facts -- and not from other presumptions -- by a process of probable and logical reasoning."
19. Illustration (a) to Section 114 of the Evidence Act says that the court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession". That illustration can profitably be used in the present context as well when prosecution brought reliable materials that the appellant's pocket contained phenolphthalein-smeared currency notes for Rs 500 when he was searched by PW 7 DSP of Anti-Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else because there is a possibility of somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the court to draw a factual presumption that the appellant had willingly received the currency notes.
32. In (2009) 15 SCC 200 (State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede), the Supreme Court has held that the burden to discharge the presumption is on the accused in respect of money recovered from him other than the legal remuneration, but the prosecution must prove the foundational facts. Paragraph-16 of the said judgment would read as under:-
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
33. Considering the evidence on record, I am of the view that the prosecution has been able to discharge its burden and laid down the foundational facts regarding the charge of the demand and acceptance of bribe-amount by the accused-appellant from the complainant whereas the accused-appellant has not been able to discharge his burden of tainted money found in the drawer of his office table. In view thereof, I find that the appeal has no merit and substance, which is hereby dismissed.
34. The accused-appellant is on bail. His bail bonds are cancelled. Sureties are discharged. The accused-appellant is directed to be taken in custody forthwith to undergo the sentence. Let the trial Court record be remitted back to the learned trial Court forthwith.
[D. K. SINGH, J.] Order Date :- 16.03.2023 MVS/-