Kailash Chand Saini Son of Shri Shiv Shankar Verma vs State of Rajasthan

1. Kailash Chand Saini Son of Shri Shiv Shankar Verma, Resident of Hadota, Police Station Chomu, District Jaipur, Inspector Police Station Railway Protection Force, Reengus, District Sikar. 2. Jagveer Singh Son of Shri Soorat Singh, Resident of Dogli Post Karota, Police Station Nagnol, District Mahendra Gadh (Haryana) Constable JE No. 05505 Police Station Railway Protection Force, Reengus, District Sikar. 3. Sanwar Mal Meena Son of Shri Nook Lal Ram, Resident of Gyanpura, Police Station Reengus District Sikar Const. JE No. 1375, Railway Protection Force, Reengus District Sikar. ----Accused-Appellants Versus State of Rajasthan, through Public Prosecutor

----Respondent

For Appellants : Mr. Madhav Mitra, Sr. Adv. assisted by Mr. Kapil Meena, Adv., Ms. Jaya Mitra, Adv., Mr. Sharukh Khan, Adv. & Mr. Akshat Jain, Adv.

Mr. Girraj P. Sharma, Adv. with Ms. Sneha Gulati, Adv. & Ms. Shruti Chandgothia, Adv.

Mr. Rajeev Kumar Sogarwal, Adv. with Mr. Sahil Hussain, Adv.

For Respondent : Mr. Manvendra Singh Shekhawat, PP

HON'BLE MR. JUSTICE ANAND SHARMA

Judgment

REPORTABLE RESERVED ON :: 21.11.2025 PRONOUNCED ON :: 19.12.2025

1. With the consent of both the sides, arguments on the

appeal were heard finally.

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2. Present criminal appeal is directed against judgment

and order dated 29.05.2023 passed by the Court of Special Judge,

Prevention of Corruption Act Cases No. 1, Jaipur Metropolitan-II

(hereinafter to be referred as 'the trial court') whereby the

appellants have been convicted for commission of offences

punishable under Sections 7, 13(1)(d) read with Section 13(2) of

the Prevention of Corruption Act, 1988 (hereinafter to be referred

as 'the Act of 1988') and Section 120-B of the Indian Penal Code

(hereinafter to be referred as 'IPC') and sentenced as under:

Appellants Sections Sentence 1. Kailash Chand Saini Section 7 of the One year's rigorous 2. Jagveer Singh Prevention of Corruption imprisonment with fine 3. Sanwar Mal Meena Act, 1988 of Rs. 5,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for one month. 1. Kailash Chand Saini Section 13(1)(d) read One year's rigorous 2. Jagveer Singh with Section 13(2) of imprisonment with fine 3. Sanwar Mal Meena the Prevention of of Rs. 5,000/-, in Corruption Act, 1988 default of payment of fine to further undergo additional rigorous imprisonment for one month. 1. Kailash Chand Saini Section 120-B of the One year's rigorous 2. Jagveer Singh Indian Penal Code imprisonment with fine 3. Sanwar Mal Meena of Rs. 5,000/-, in default of payment of fine to further undergo additional rigorous imprisonment for one month.

All the sentences were ordered to run concurrently.

At the relevant time, Appellant No.1 was holding the

post of Incharge of RPF Police Station, Reengus whereas Appellant

No.2 was duty Officer/Constable and Appellant No. 3 was a

Constable in the same Railway Police Station.

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3. Facts of the case, in brief, are that the prosecution case

hinges upon the complainant's allegation of demand and

acceptance of bribe of Rs. 5,000/- by the accused-appellants for

deleting the name of the complainant from a criminal case

registered under the Railways Act, 1989. A written complaint was

submitted by the complainant, Chiranjilal before the

Superintendent of Police, Anti Corruption Bureau, Chowki Sikar on

25.07.2007 alleging therein that the complainant was an LIC

agent. On 22.06.2007, the complainant had gone to Jaipur to

collect LIC premium. When complainant's brother, Ramniwas, after

taking a ticket from the counter came outside the boundary near

the Municipal Council, he was stopped by Railway Officer, R.S.

Kasana and allegation of illegal reselling of railway tickets was

levelled against complainant's brother and after altercations,

tickets were taken away by the officer. After one day, the

complainant learnt that one case has been registered against the

complainant as well as his brother in RPF Police Chowki. After

registration of the case, the complainant and his brother were

called in RPF Police Chowki. However, instead of reporting before

the police officer, they approached the Court of Additional Sessions

Judge, Jaipur and succeeded in getting the order of anticipatory

bail. It was further alleged that they went to RPF Police Chowki,

Sikar on 12.07.2007 along with order of anticipatory bail,

however, they were asked to submit the same at Police Station

Reengus. Accordingly, the complainant and his brother went to

Police Station Reengus on 13.07.2007 where Police Station In-

charge (Appellant No.1) stated that in case, they had contacted

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him earlier, he would have closed the case at initial stage itself.

Appellant No. 1 asked the complainant to meet Jagveer Singh

Munshi (Appellant No. 2), who asked the complainant to give Rs.

5,000/- for the In-charge (Appellant No.1), so that his name

would be struck off from the case and his brother would also be

released after compounding of the offence on first date of hearing

itself. Thereupon, the complainant informed that at that point of

time, he had only Rs. 2,000/- with him which were taken by

Appellant No. 2, Jagveer Singh, who asked the complainant to

come with Rs. 3,000/- on 26.07.2007 and not to engage any

advocate in the said case. After two days, Appellant No.2 went to

complainant's shop and demanded remaining bribe amount. After

narrating the facts of the case, the complainant stated in the

written report that he did not want to give bribe to the appellants

and wanted legal action against them.

4. On the basis of the above written report, initial

interrogation was conducted from the complainant, who reiterated

his allegations with regard to demand of Rs. 5,000/- by Appellant

No. 2, out of which Rs. 2,000/- had already been given by him to

Appellant No.2 and remaining amount of Rs. 3,000/- was to be

given by the complainant to Appellant No. 1 as per complainant's

wishes and convenience. After initial verification, trap proceedings

were arranged wherein on 26.07.2007, in which Appellant No.3

was trapped red handed with Rs. 3,000/- which were received as

bribe for Appellant No.3 himself as well as other co-accused.

Accordingly, FIR No. 210/2007 was registered at Police Station

ACB, Rajasthan, Jaipur for commission of offences punishable

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under Sections 7, 13(1)(d) read with Section 13(2) of the Act of

1988 and Section 120-B IPC and investigation commenced in the

matter. During investigation, statements of the witnesses were

recorded and the seized bottles having chemicals after washing of

hands of Appellant No.3 were sent for forensic examination. After

completion of investigation as also obtaining necessary

prosecution sanction, on 08.12.2008, charge sheet for commission

of offences punishable under Sections 7, 13(1)(d) read with

Section 13(2) of the Act of 1988 and Section 120-B IPC was filed

against the appellants before the trial court. Thereafter,

cognizance for commission of aforesaid offences was taken by the

trial court against the appellants. Later on, arguments on framing

of charges were heard and charges were framed by the trial court

against the appellants for commission of offences punishable

under Sections 7, 13(1)(d) read with Section 13(2) of the Act of

1988 and Section 120-B IPC. The appellants denied the charges

and claimed trial.

5. In order to prove its case, the prosecution examined as

many as 19 witnesses and also produced documentary evidence

as Exhibit P-1 to Exhibit P-32 as well as 16 Articles.

6. After completion of evidence of the prosecution,

statements of the appellants were recorded under Section 313

Cr.P.C. by the trial court wherein all the allegations were denied by

the appellants.

7. So far as Appellant No.1 is concerned, he submitted his

explanation under Section 313 Cr.P.C. that he was falsely

implicated in the case on account of conspiracy hatched by the

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complainant and another officer of the department, namely, Shri

I.D. Khan. He never demanded or received any bribe from the

complainant, nor did he ask to give such bribe to any other

person. He further submitted that on the directions of Internal

Vigilance Group of RPF, the complainant as well as his brother

were booked for illegal reselling of railway tickets and the said

case was being investigated by Shri I.D. Khan, who found that the

offences against the complainant and his brother were made out

and accordingly, charge sheet was prepared by him, which was

sent for necessary approval by Appellant No.1 to the office of

Divisional Security Commissioner on 24.07.2007. Hence, no work

of the complainant was pending with Appellant No.1 and false

complaint has been lodged by the complainant against Appellant

No.1 when the complainant came to know that charge sheet has

already been prepared against him and his brother. Appellant No.1

further clarified that he was neither investigating officer in the

aforesaid case, nor was in a position to extend any undue benefit

to the complainant, nor could he have got such undue benefit for

the complainant through any other person. He further explained

that charge sheet had already been filed against the complainant

and his brother. The investigating officer did not record

statements of employees of Railway Court, who were very much

present at the time of incident, nor did he record statements of

employees of RPF, who were also present at the time of such

incident and had submitted a faulty charge sheet in the case.

Appellant No.1 submitted that he was innocent and had

discharged his duties with due honesty.

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8. Appellant No.2, in his statement recorded under

Section 313 Cr.P.C., explained that he had been falsely and

maliciously implicated in the case whereas he had never met the

complainant, nor did he raise any demand of bribe from the

complainant. The complainant never met him either on

13.07.2007 or on any other day at his shop. He was posted for

government duties in the office of Divisional Security

Commissioner, Jaipur from 24.07.2007 to 26.07.2007. Hence,

even at the time of trap proceedings, he was not present at the

site, yet he has been framed in the present case.

9. As regards Appellant No.3, he also denied all the

allegations levelled against him while giving statement under

Section 313 Cr.P.C. and explained that he was falsely implicated in

the case on account of conspiracy hatched by the complainant and

Shri I.D. Khan whereas at no point of time, he has raised any

demand of bribe from the complainant, nor has he received the

alleged bribe amount. He was never instructed by his higher

officer, Kailash Chand Saini (Appellant No.1) for accepting any

bribe amount from the complainant. Till trap proceedings, he

never met Appellant No. 1 personally. The complainant and his

brother attempted to forcibly put the alleged bribe amount of Rs.

3,000/- in the pocket of his trouser, but such attempt was

unsuccessful as Appellant No.3 did not accept the amount and on

account of his opposition and pushing hands of complainant,

currency notes were scattered on the floor. He never touched the

alleged currency notes and, therefore, FSL examination of the

chemical solution was negative as the colour was sandy and not

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pink. No work of the complainant was pending with Appellant

No.3, nor was he competent to do the desired work of the

complainant. He was innocent and performed his duties with

honesty. However, he was falsely farmed in the case.

10. Thereafter, defence evidence was also led by the

appellants wherein three defence witnesses were examined and

seven documents were exhibited as D-1 to D-7. Thereafter, oral

arguments from both the sides were heard by the trial court and

the trial court vide its judgment and order dated 29.05.2023

convicted the appellants for commission of offences punishable

under Sections 7, 13(1(d) read with Section 13(2) of the Act of

1988 and Section 120-B IPC and sentenced each of them in the

manner as indicated above.

11. Mr. Madhav Mitra, learned Senior Advocate as also

learned counsels appearing on behalf of the appellants would

submit that impugned judgment and order has been passed by

the trial court in utter disregard to the facts of the case, material

and evidence on record as also the law prevailing at the relevant

time. Although, the prosecution utterly failed to prove the charges

beyond reasonable doubt against the appellants, yet they have

been convicted by the trial court by recording perverse, irrational

and baseless findings.

12. While arguing on behalf of Appellant No. 2, Jagveer

Singh, learned Senior Advocate as also learned counsels

submitted that Appellant No. 2 had never met the complainant

Chiranjilal. He was neither present at RPF Police Station Rengus on

13.07.2007, nor on the date of alleged trap on 26.07.2007. No

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transcription of any demand whatsoever by Appellant No. 2 has

been placed on record. The prosecution has also utterly failed to

prove the presence of Appellant No. 2 either at the tme of alleged

initial demand on 13.07.2007 or on the date of alleged trap on

26.07.2007. It was further submitted that it has been admitted by

all material witnesses that there is no voice recording of the

alleged conversation which took place on 13.07.2007 and even

thereafter for the purpose of verification of the demand by

Appellant No. 2. No efforts whatsoever were made by the

investigating officer for verifying the factum of demand. Even after

alleged trap, when Appellant No. 2 was not present at the time of

trap, no endeavour was made for verifying the allegation of

demand of gratification by Appellant No. 2. It was submitted that

no independent witness, except the complainant or his brother,

was produced by the prosecution to prove the fact that the bribe

was demanded by Appellant No. 2 for Appellant No. 1. Learned

Senior Advocate and learned counsels also added that Appellant

No. 2 was simply holding the post of constable and was duty

officer/desk clerk, therefore, he was not competent to carry out

the work alleged to be pending by the complainant, nor, in fact,

any work of the complainant was pending with Appellant No. 2. It

is also submitted that the allegation levelled by the complainant

that Appellant No. 2 visited his shop for recovery of remaining

bribe amount of Rs. 3,000/- was totally unverified and without any

proof. No details of date and time of visiting at the shop was

given, nor any witness, except the baseless statement of the

complainant, was produced to prove such allegation. It was also

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submitted that admittedly recovery of the alleged bribe amount

has not been made from Appellant No. 2, therefore, the

prosecution utterly failed to prove all the three necessary

ingredients, i.e., demand of bribe, acceptance/recovery of bribe

amount and motive on the part of Appellant No. 2. However,

ignoring this important aspect, Appellant No. 2 has erroneously

been convicted by the trial court without there being any proof of

his involvement in the alleged crime.

13. While challenging impugned judgment of conviction and

order of sentence, it was argued on behalf of Appellant No. 1 that

the investigation with regard to illegal reselling of tickets by the

complainant and his brother was never done by Appellant No. 1

and rather investigation was conducted by another officer, Shri

I.D. Khan, who recorded statements of the relevant witnesses and

even charge sheet was prepared by Shri I.D. Khan and not by

Appellant No. 1. It was further submitted that after completion of

investigation in the said case against the complainant and his

brother, file was sent by Shri I.D. Khan to Appellant No. 1 on

23.07.2007 and the same was sent by Appellant No. 1 on

24.07.2007 to the competent authority for approval of the charge

sheet. In the charge sheet, the complainant as well as his brother

both were shown as accused. Therefore, as on the date of alleged

trap, i.e., on 26.07.2007, no work whatsoever was pending with

Appellant No. 1. It was also submitted that even otherwise, no

evidence has been led by the prosecution to prove that the

investigation against the complainant and his brother was either

conducted by Appellant No. 1 or at any point of time, Appellant

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No. 1 influenced Shri I.D. Khan for conducting investigation in a

particular manner. Since, the charge sheet prepared by Shri I.D.

Khan had already included the complainant as well as his brother

as accused and the same was already sent by Appellant No. 1 to

his higher authority for approval on 24.07.2007, he was not

capable to make any change in the charge sheet thereafter.

Therefore, it is clear that Appellant No. 1 was not in a position to

extend any undue favour whatsoever to the complainant. It is

submitted that Appellant No. 1 has been framed in the case

maliciously on account of collusion of the complainant with Shri

I.D. Khan. Learned Senior Advocate as also learned counsels

would further submit that it is an admitted case of the

complainant and the prosecution that on 13.07.2007, no illegal

gratification whatsoever was demanded by Appellant No. 1 from

the complainant and that there is no voice recording of alleged

conversation which took place on 13.07.2007. Even transcription

of voice recording on 26.07.2007 was not sufficient to prove any

specific demand of bribe by Appellant No. 1 from the complainant

and rather the transcription would clearly suggest that it was the

complainant, who although voluntarily offered some amount which

was not accepted by Appellant No. 1 in clear terms. Such vague

and evasive conversation cannot be termed as a demand of

gratification for the purpose of constituting offence under the

provisions of the Act of 1988. Proving demand of bribe in specific

and clear terms is sine qua non for proving the offence under the

provisions of the Act of 1988. Further, the prosecution has utterly

failed to prove the demand in the present case. The prosecution

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has failed to prove that at any point of time, Appellant No. 1

instructed Appellant No. 3 Sanwar Mal Meena, who was charged

with allegedly accepting remaining amount of bribe of Rs. 3,000/-

from the complainant and admittedly, the alleged recovery of the

bribe amount is not from Appellant No. 1. Thus, all the ingredients

of demand of bribe, recovery of bribe and pendency of work could

not be proved by the prosecution, still on the basis of irrelevant

factors, the trial court has convicted Appellant No. 1 and

impugned judgment and order passed by the trial court is liable to

be quashed and set aside.

14. Learned Senior Advocate as also learned counsels

arguing for Appellant No. 3 would submit that there is no

allegation whatsoever against Appellant No. 3 for demanding any

bribe from the complainant either on 13.07.2007 or on

26.07.2007. They would also submit that there is ample evidence

to show that on 26.07.2007, at the time of alleged trap, currency

notes were never accepted by Appellant No. 3, rather the

complainant on his own attempted to put such currency notes in

pocket of Appellant No. 3 and such attempt was also unsuccessful

as the complainant's hand was pushed away by Appellant No. 3.

Resultantly, all the currency notes scattered on the floor. Thus, the

currency notes were not found from the possession of Appellant

No. 3. Even, FSL examination of the solution prepared by ACB

team at the time of trap would clearly indicate that the colour of

the solution was not pink and was rather sandy. Therefore, by no

stretch of imagination, Appellant No. 3 could have been convicted

by the trial court.

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15. In addition to above, learned Senior Advocate and

learned counsels for the appellants submitted that from the

evidence, it has come on record that on 26.07.2007, when ACB

team plotted its trap and entered into the premises of incident,

the Court of Railway Magistrate was in session and staff of Railway

Court and other litigants/persons were present on the site. Even

learned Railway Magistrate after hearing the ruckus and clamour

asked ACB personnel about the reasons of such noise. Despite

that, no independent person or even the learned Railway

Magistrate was not produced as witness before the trial court in

order to prove the recovery of alleged bribe as well as to prove the

validity of the trap proceedings.

16. It was further submitted that as per story of the

prosecution, initially, demand was raised by Appellant No. 2 for

Appellant No. 1 on 13.07.02007, yet the complaint was lodged by

him on 25.07.2007 and no explanation whatsoever has been given

by the complainant for remaining silent for 12 days. Therefore, in

the facts and circumstances of the present case, such delay is

fatal and puts a reasonable doubt over the bona fides of the

complainant as well as on prosecution story.

17. Learned Senior Advocate as also learned counsels for

the appellants would further submit that in the entire judgment,

no findings or observations have been recorded by the trial court

for drawing presumption under Section 20 of the Act of 1988 and

under such circumstances, where there is no proximity between

the scattered evidence led for unsuccessfully proving the demand

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and recovery of bribe, in absence of any finding with regard to

presumption under Section 20 of the Act of 1988, the trial court

could not have convicted the appellants. It is further submitted

that prosecution sanctions under Section 19 of the Act of 1988

have also been granted in a quite mechanical manner as neither

the complete record was sent to the sanctioning authority, nor

draft charge sheet was provided to the said authority, nor the

competent authority before granting prosecution sanctions has

discussed the niceties of the matter with the investigating officer.

Therefore, under such circumstancs where the prosecution

sanctions cannot be treated as empty formality, overlooking such

significant factor, the appellants ought not have been convicted

and sentenced by the trial court vide impugned judgment and

order.

18. Learned Senior Advocate as well as learned counsels

also submitted that although charge under Section 120-B IPC was

also farmed against the appellants, yet the prosecution has utterly

failed to prove any meeting of mind or conspiracy between all the

appellants, so as to commit alleged offence with common intention

and object. Thus, on the basis of aforesaid submissions, learned

counsels for the appellants prayed that this appeal be allowed and

judgment and order passed by the trial court be quashed and set

aside and the accused-appellants be acquitted of the charges

framed against them.

19. In support of their submissions, learned Senior

Advocate as also learned counsels for the appellants have placed

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reliance upon the decisions of the Hon'ble Supreme Court in the

cases of Madan Lal vs. State of Rajasthan, (2025) 4 SCC

624; Neeraj Dutta vs. State (Government of NCT of Delhi),

(2023) 18 SCC 251; Soundarajan vs. State Rep. by the

Inspector of Police Vigilance AntiCorruption Dindigul 2023

LiveLaw (SC) 314; B. Jayaraj vs. State of Andhra Pradesh,

(2014) 13 SCC 55; Mir Mustafa Ali Hasmi vs. The State of

A.P. (2024) 10 SCC 489; P. Somaraju vs. State of Andhra

Pradesh, 2025 SCC OnLine SC 2291; State of Lokayuktha

Police, Davanagere vs. C B Nagaraj 2025 SCC OnLine SC

1175; Madan Lal vs. State of Rajasthan (Criminal Appeal

arising out of Special Leave Petition (Crl.) No. 6895 of 2022

decided on 07.03.2025); Dileepbhai Nanubhai Sanghani vs.

State of Gujarat & Anr. 2025 SCC OnLine SC 441; Jagtar

Singh vs. State of Punjab, (2023) 19 SCC 498; Selvaraj vs.

State of Karnataka, (2015) 10 SCC 230; Satvir Singh vs.

State of Delhi thru. CBI, AIR 2014 SC 3798; State of Punjab

vs. Madan Mohan Lal Verma, (2013) 14 SCC 153; K.

Shanthamma vs. State of Telangana, (2022) 4 SCC 574;

decisions of Co-ordinate Benches of this Court at Principal Seat,

Jodhpur in the case of Kishore Singh Vs. State of Rajasthan

(S.B. Criminal Appeal No. 163/1999 decided on

17.05.2024); Dr. Rajkumar Agarwal Vs. State of Rajasthan

(S.B. Criminal Appeal No. 565/2017 decided on

31.05.2023); Babu Lal Vs. State of Rajasthan through PP

(S.B. Criminal Appeal (sb) No. 2556/2023 decided on

16.08.2024); decision of Karnataka High Court in the case of

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Imamsab Moulasab Toragal vs. State of Karnataka through

Belgaum Rural Police, 2023 SCC OnLine Kar 158; decision of

Madras High Court in the case of State Rep. by Superintendent

of Police, Vigilance & Anti Corruption, Chennai vs.

Subramanian & Others, 2006 0 Supreme (Mad) 2053;

decision of High Court of Chhattisgarh at Bilaspur in the case of

Vijay Kumar Tiwari (Died and Deleted) through Lr as per

Hon'ble Court & Another vs. State of Chhattisgarh, through

Special Police Establishment, 2025 SCC OnLine Chh 8736.

20. Learned Public Prosecutor opposed the appeal and

submitted that impugned judgment has been delivered by the trial

court after meticulous examination of the facts of the case, each

and every limb of oral as well as documentary evidence and after

considering the prevailing law. Therefore, no interference is called

for in the impugned judgment.

21. Learned Public Prosecutor pointed out that the plea

raised by Appellant No. 2 that he was not present at the time

when initial demand of bribe was raised on 13.07.2007 does not

match with the record and evidence and there is ample material

on record to show that Appellant No. 2 was very much there in his

office and had demanded bribe for Appellant No.1. Learned Public

Prosecutor submitted that merely the fact that on the date of trap,

Appellant No.2 was not present would not absolve him from the

charges framed against him as it is not incumbent for the

prosecution to prove that the bribe has been received by the same

person, who had raised the demand. While referring to Section 7

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of the Act of 1988, it has been argued by learned Public

Prosecutor that the offence is constituted even in the cases where

the demand is raised by person concerned for himself/herself or

for any other person.

22. Learned Public Prosecutor further argued that it is

incorrect to state on the part of the appellants that no work of the

complainant was pending with Appellant No. 1. He submitted that

although, initially investigation was conducted by Shri I.D. Khan,

yet the entire matter was taken up by Appellant No. 1 and all the

proceedings were conducted by him only. Learned Public

Prosecutor would further submit that from bare perusal of the

transcription of voice recording would reveal that Appellant No. 1

has specifically asked the complainant to give remaining amount

of bribe to Appellant No. 3. Learned Public Prosecutor submits that

only on account of the fact that on the date of trap, currency

notes were not found in the hands of Appellant No. 3 would not

make any difference as the same were thrown by him after finding

that ACB team had entered into the premise. Learned Public

Prosecutor would also submit that the entire material was placed

before the competent authority, who issued prosecution sanctions

in the instant matter and there is no infirmity in the order of grant

of prosecution sanction. Even otherwise, order of issuance of

prosecution sanction was never challenged by the appellants by

way of availing separate remedies.

23. Learned Public Prosecutor submitted that the evidence

in the matters arising out of the provisions of the Act of 1988

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cannot be read in piecemeal and the same has to be appreciated

in entirety. The evidence led by the prosecution would make it

clear that there is apparent, explicit and clear material on record

to prove beyond reasonable doubt that the appellants have

committed the offences as charged against them. It is further

submitted that there is no requirement to record specific finding

with regard to presumption under Section 20 of the Act of 1988 as

it is settled proposition of law that where demand and recovery of

bribe has been successfully proved, motive can be presumed

without there being any specific finding in this regard. Learned

Public Prosecutor, therefore, prayed for dismissal of the appeal

filed by the appellants.

24. I have carefully considered the arguments raised by

learned counsels for the appellants as well as learned Public

Prosecutor, perused the record and meticulously examined the

evidence led by both the sides.

25. Needless to mention here that for the purpose of

proving offence under Sections 7, 13(1)(d) and 13(2) of the Act of

1988, it is required that the prosecution proves beyond reasonable

doubt three essential ingredients, namely, demand of bribe,

acceptance/recovery thereof and pendency of work with the

accused persons.

26. For the purpose of examining the aforesaid three

essential ingredients, evidence placed on record by the respective

parties was analysed by this Court.

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27. Maduram (P.W.1) was holding the post of ASI in Railway

Police Station, Reengus and was discharging his duty as Duty

Officer on 13.07.2007. In his examination-in-chief, this witness

stated that on 13.07.2007, the complainant came to Railway

Police Station Reengus with copy of order of anticipatory bail

where the complainant and his brother were examined and

necessary proceedings were drawn. This witness verified daily

diary (Rojnamcha), Exhibit P-1, which was bearing signatures of

Appellant No.1. He also stated that on 26.07.2007, trap party of

ACB led by Satpal Singh, Dy.S.P., ACB, Sikar conducted trap where

Appellant No. 3 was caught red handed while accepting Rs.

3,000/- from the complainant. However, in cross-examination, this

witness stated that on 13.07.2007, duty of Appellant No. 2 was on

reservation window from 7.45 A.M. and he was relieved from said

duty at 4.50 P.M. Further, after being relieved from duty of

reservation window, Appellant No. 2 straightway went to his

railway quarter. He also stated that he was present on 26.07.2007

at the time of incident where Railway Magistrate Court was in

session and conducting its functioning. This witness admitted that

in respect of case registered against the complainant under the

Railways Act, investigation was conducted by Shri I.D. Khan, Sub

Inspector, who after completion of the investigation sent the file

to Appellant No.1 for the purpose of forwarding the same for

necessary approval for filing charge sheet. Thus, no work of the

complainant was pending with Railway Police Station, Reengus.

This witness further admitted that on 26.07.2007, Appellant No. 2

was not at Reengus and he was, in fact, at Jaipur since

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24.07.2007. He stated that Appellant No.3 refused to accept

sweets box from the complainant and while the complainant was

forcibly putting currency notes in the pocket of Appellant No.3, he

jerked and flicked the hand of the complainant. Consequently,

currency notes were scattered on the floor. In his cross-

examination, this witness further admitted that Sanwar Mal

(Appellant No.3) did not accept the money, nor the same was ever

demanded by him, rather the complainant was forcibly attempting

to give him money. He also admitted the fact that entire incident

was being watched by learned Railway Magistrate, who also

objected to the noises occurred in the premises. Although, said

statement of P.W.1 was not supporting story of the prosecution,

yet the prosecution did not choose to declare him hostile and

rather, the prosecution conducted re-examination of the witness.

However, during re-examination, this witness did not support the

case of the prosecution and reiterated his statement given during

cross-examination.

28. Dr. P.M. Singh Dev (P.W.3) was Chief Security

Commissioner, Railway Protection Force, North Western Railway,

Jaipur and he was the competent authority to accord prosecution

sanction for Appellant No. 1. He, in his cross-examination, stated

that he did not remember as to whether any letter along with file

was sent to him by ACB for issuance of prosecution sanction or

not. Later on, he improved his version by stating that entire file

was sent to him. This witness was shown prosecution sanction

order of Appellant No. 1 (Exhibit P-4) and he admitted that in

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Exhibit P-4, there was no reference with regard to details of the

documents as well as details of statements of different persons.

29. This witness further stated that he himself did not hear

the voice recording by operating audio cassette. However, he

stated that he had read the transcription. This witness further

stated that no recovery of bribe amount was made from Appellant

No.1, rather, Appellant No.1 was not found present at the spot of

incident at the time of trap. He failed to make any statement as to

whether any work of the complainant was pending with Appellant

No.1 or not.

30. Anil Kumar Das (P.W.4), at the relevant time, was

holding the post of Divisional Security Commissioner, Railway

Protection Force, North Western Railways and was prosecution

sanctioning officer for Appellants No. 2 and 3. He, in his

examination-in-chief, stated that on the basis of oral and

documentary evidence available on the file, prosecution sanctions

were granted by him after due application of mind. However,

during cross-examination, this witness stated that the

transcription of voice recording (Exhibit D-2) was although

presented before him, but there was no such transcription

regarding demand of any bribe by Appellant No.3, nor was there

anything on the file with regard to verification of demand from

Appellant No. 2. The transcript also did not have any reference of

demanding bribe of Rs. 5,000/- by Appellant No.2. He also

admitted that at the time of trap proceedings at Police Station

Reengus, learned Railway Magistrate was holding camp court in

the premise of police station itself. However, Appellant No.2 was

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not present at that time in the police station. During cross-

examination, this witness also admitted that orders of prosecution

sanction (Exhibit P-5 and Exhibit P-6) issued in respect of

Appellant No. 3 and 2 respectively were exactly similar without

there being any difference of full stop and coma. He also admitted

that charge sheet in the case lodged against the complainant was

prepared by Shri I.D. Khan with recommendation to submit the

same in Court on 24.07.2007. This witness also admitted that no

complaint whatsoever was received by him from Shri I.D. Khan

regarding any influence or coercion applied upon him by any other

officer of the department. He also submitted that during trap

proceedings, no amount of bribe was recovered from Appellant

No. 1 and in Exhibit D-1, there was no specific reference with

regard to demand of bribe or acceptance thereof by Appellant

No.1. He admitted that the investigation in the case against the

complainant was not conducted by Appellant No.1, nor such

investigating was pending before him.

31. Islamudeen Khan (I.D. Khan) was examined as P.W.6

by the prosecution, who stated that although investigation of Case

No. 644/2007 against the complainant was entrusted to him,

however, the file of the case was taken away by Appellant No. 1

and he could not refuse to Appellant No.1 from taking the file and

the statements were recorded by Appellant No.1. However, all the

documents were signed by him (P.W.6). This witness submitted

that he had applied for voluntary retirement, which was granted to

him in December, 2007. During cross-examination, this witness

admitted that no complaint of Appellant No.1 was ever made by

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him regarding taking away file of the complainant from him, nor

was there any complaint lodged by him against Appellant No.1 for

pressuring him to sign investigation file of the complainant.

32. Ved Prakash Surajmal Sharma appeared as P.W.7 in the

witness box and admitted during cross-examination that from

24.07.2007 to 26.07.2007, Appellant No. 2 was discharging duties

in the office of Assistant Security Commissioner, RPF, Jaipur and

Duty Certificate (Exhibit D-4) was signed by him. He also admitted

that one complaint was made by the complainant against accused

persons, which was found to be false after enquiry.

33. Kailash Chandra Meena (P.W.8) was Assistant Security

Commissioner, Railway Protection Force, Izzatnagar, Bareilly and

holding the post of Inspector, RPF Police Station Reengus at the

relevant time in the year 2007. He was also predecessor of

Appellant No.1. This witness, during cross-examination, admitted

that Shri I.D. Khan did not submit any written or oral complaint

against Appellant No.1 with regard to creating any pressure in the

investigation against the complainant and the entire investigation

was rather conducted by Shri I.D. Khan as per his discretion.

34. Chiranji Lal (P.W.9) was the complainant, who during

his examination-in-chief, almost repeated his complaint and

levelled allegation of demand of bribe by Appellant No. 2 for

Appellant No.1 and acceptance of remaining bribe amount by

Appellant No.3. He, in his cross-examination, submitted that in

the matter pending against him under the Railways Act,

investigation was conducted by Appellant No. 1 and 2, not by Shri

I.D.Khan. He further submitted that record of conversation

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between the complainant and accused persons on 13.07.2007 was

not created as he was not carrying any tape recorder on

13.07.2007. He also submitted that in the statements taken by

ACB at the time of making complaint, no dates were entered on

the statement. This witness further admitted that for the purpose

of submitting bail bonds, one surety, namely, Nagarmal was also

accompanying him and was present in the police station and Rs.

2,000/- were given by the complainant to Appellant No.2 in front

of surety, Nagarmal, yet the surety refused to give any statement

in support of such allegations. He also admitted that he did not

make any complaint on 13.07.2007 with regard to give Rs.

2,000/- to Appellant No. 2. This witness further admitted the fact

that in his complaint (Exhibit D-1), there was no reference that

Appellant No. 2 visited his shop in between 13.07.2007 to

25.07.2007 for recovery of remaining bribe amount. This witness

also failed to give any proof of such visiting of Appellant No. 2 at

his shop during the aforesaid period. He also admitted that in his

complaint (Exhibit D-1), there was no reference of demand of Rs.

5,000/- as bribe by Appellant No.2. He stated that on 26.07.2007,

he did not give any money to Appellant No.1 or Appellant No. 2.

However, by his gestures, Appellant No.1 asked the complainant

to give money to Appellant No. 3 and further, Appellant No. 1

never spoke him by words to give Rs. 3,000/- to Appellant No. 3.

This witness further admitted that in the demand verification

conversation and in its transcription, there was no reference about

any offer by the appellants to dilute the criminal case against the

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complainant and his brother, which has although been alleged by

him in his complaint (Exhibit D-1).

35. Shravan Kumar (P.W.10), at the relevant time, was

holding the post of Head Constable at ACB Chowki, Sikar and he

was the person, in whose presence, the memo of giving tape

recorder with cassette to the complainant for voice recording for

the purpose of demand verification was prepared. He admitted

that in the transcription of voice recording (Exhibit D-2), there was

no reference of conversation with Appellant No.2 and this witness

also admitted the fact that investigation against the complainant

in criminal case under the Railways Act was conducted by Shri I.D.

Khan.

36. Ramniwas (P.W.12) was the brother of the complainant

and prime accused in the case registered under the Railways Act

in respect of which allegation of demanding bribe was levelled by

the complainant. In his examination-in-chief, this witness stated

that on 13.07.2007, when they went to RPF Police Station,

Reengus and appeared before Appellant No.1, he asked Appellant

No. 2 (Bench Clerk) to conduct necessary proceedings for

accepting the bail bonds of the complainant and his brother,

whereupon Appellant No. 2 demanded bribe of Rs. 5,000/- out of

which Rs. 2,000/- were given by the complainant to him. However,

during cross-examination, this witness admitted that conversation

with regard to demand of Rs. 5,000/- for disposing off the case

registered against them had never taken place with this witness.

He also admitted that on 13.07.2007, he had no conversation with

Appellant No.2. This witness further submitted that on

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26.07.2007, no conversation between him and Appellant No. 1

took place, nor Appellant No. 1 asked him to give remaining

amount of bribe to Appellant No. 2.

37. Laxminarain (P.W.13), at the relevant time, was holding

the post of Constable at ACB Chowki, Sikar and was also one of

the member of trap party, who deposed to verify the trap

proceedings. However, during his cross-examination, he admitted

the fact that physical recovery of currency notes was never made

from Appellant No. 3 and rather, the currency notes were

recovered from the floor.

38. Rohitashav Singh (P.W.14) was also Constable in ACB

Chowki, Sikar at the relevant time and also a member of trap

team. However, during his cross-examination, he admitted that he

did not hear any conversation at the time of handing over bribe

money, nor did he have any personal knowledge as to whether the

complainant attempted to forcibly put the currency notes in the

pocket of Appellant No.3. This witness further admitted that

currency notes were collected by Shravan Singh, Constable from

the floor and no recovery of currency notes was made from the

possession of Appellant No.3.

39. Mahaveer Singh Gadwal (P.W.15) was also member of

trap party and deposed before the trial court with regard to trap

proceedings. However, during his cross-examination, this witness

admitted that no record of conversation on 13.07.2007 was

available on the file before the trial court, nor was there any

evidence to prove that on 13.07.2007, the complainant ever met

the appellants. Complaint made by the complainant (Exhibit D-1)

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was shown to this witness, who verified that the fact of visiting the

shop of the complainant by appellant No. 2 was not mentioned in

the complaint. He further admitted that entire criminal case has

been lodged by the complainant as a counter blast of the case

lodged against him. He admitted the fact that on the date of trap,

brother of the complainant, Ramniwas (P.W.12) was not there on

the site of trap, rather he met him at crossing of Kalyan Circle,

Sikar.

40. Arvind Kumar Beniwal (P.W.17) admitted the fact that

on 26.07.2007, Appellant No. 2 was not present on the site and on

26.07.2007, no conversation for the purpose of demand

verification was made from Appellant No.2. This witness failed to

state as to whether any work of complainant was pending with

Appellant No.1 or not, but admitted the fact that case file of the

complainant was already sent by Appellant No. 1 in the office of

Divisional Security Commissioner, RPF, Jaipur on 24.07.2007 for

the purpose of granting approval for filing challan.

41. Chatrasal Singh (P.W.18), who at the relevant time, was

Deputy Superintendent of Police of ACB, Sikar deposed that he

received the complaint of demanding bribe by the appellants.

However, during cross-examination, he admitted the fact that the

complaint did not bear any signature of Ramniwas, brother of the

complainant and also stated that investigation in respect of

criminal case lodged against the complainant and his brother was

conducted by Shri I.D. Khan. This witness also admitted that while

verifying the demand on 25.07.2007, he did not ask the

complainant with regard to lodging the complaint with delay on

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25.07.2007 with regard to alleged incident which took place on

13.07.2007. He also admitted the fact that in complaint (Exhibit

D-1) made by the complainant, there was no reference that

Appellant No. 1 had ever demanded Rs. 5,000/- from the

compalaint and there was no record of conversation, which took

place on 13.07.2007. This witness also admitted the fact that

there was no oral or documentary evidence on record to prove

that on 13.07.2007, any bribe amount was given by the

complainant to Appellant No. 2. He further admitted the fact that

on 26.07.2007, Appellant No. 2 was not present at the time ot

trap proceedings and rather, he was at Jaipur since 24.07.2007 for

official work. This witness further admitted that at the time of trap

proceedings or even thereafter, for the purpose of verification, no

conversation was got conducted between Appellant No. 2 with

either Appellant No. 1 or Appellant No. 3 for the purpose of

demand verification through telephone. He also admitted that

colour of washing solution of hands of Appellant No. 3 was sandy

and not pink, and that no bribe amount was recovered from

Appellant No. 1 and he did not take any amount from the

complainant.

42. Leeladhar Jangid (P.W.19), another prosecution witness,

who was holding the post of Police Inspector in ACB, SIW, Jaipur,

admitted the fact that there was no conversation record of

13.07.2007 and there were no reasons available on record for

making the complaint by the complainant of the alleged incident

which took place on 13.07.2007 on 25.07.2007, after 12 days.

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43. In the documentary evidence, Exhibit P-1, which is

copy of daily diary (Rojnamcha) dated 13.07.2007 shows that on

13.07.2007, duty of Appellant No. 2 was on reservation window

and not at the police station. Exhibit P-4 is the order of

prosecution sanction of Appellant No. 1. However, the said

document does not reveal that whether draft charge sheet was

produced before the sanctioning authority or not. Similarly, Exhibit

P-5 and Exhibit P-6 are prosecution sanction orders of Appellants

No. 3 and 2 respectively. Comparison of Exhibit P-4, Exhibit P-5

and Exhibit P-6, which are different prosecution sanction orders,

would reveal that although the authority for issuing Exhibit P-4

was different from the authority who issued Exhibit P-5 and

Exhibit P-6. Further, the aforesaid documents would show that

sanctions for prosecution were issued by different authorities in a

draft format and they have acted on the dotted lines drawn by the

ACB. In none of the aforesaid prosecution sanction orders, there is

reference of sending draft charge sheet to the prosecution

sanctioning authorities and although, role of each of the appellant

was altogether different in the alleged criminal case, yet similar

kind of orders have been passed for granting prosecution sanction.

Exhibit P-19 and Exhibit P-20 are the transcription of voice

recording on 25.07.2007 and 26.07.2007, which were

meticulously examined by this Court. However, it comes out that

though there is reference of conversation of the complainant with

Appellant No.1 and Appellant No. 3, but, complete examination of

transcription does not reflect that there was any specific demand

of bribe in explicit terms either by Appellant No. 1 or Appellant No.

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3. The transcription shows that the complainant himself, at

different intervals during conversation, had voluntarily tried to

offer some money for which Appellant No. 1 stated that it was not

required and at one point of time, it was stated by Appellant No. 1

that there is no matter of any money and even if the complainant

had any requirement, Appellant No. 1 himself give it would give it.

44. Demand of bribe money is sine qua non and there

should be specific, clear and cogent evidence to prove demand of

bribe. Mere insinuation or casual conversation, including any

scratchy, incomplete, vague or evasive dialogue, cannot constitute

a demand for the purposes of the Act of 1988. Rather, the demand

must be in explicit and unambiguous words and canot be inferred

from ambiguous exchanges. Such evidence is indispensable for

the purpose of constituting the alleged offences against the

accused persons.

45. Admittedly, the complainant has alleged that initially

demand was raised by Appellant No. 2 on 13.07.2007 from the

complainant, however, the prosecution has utterly failed to prove

the same as no other person, except the complainant, has given

any statement in this regard. Furthermore, admittedly, there is no

voice recording to prove any demand by Appellant No. 2 on

13.07.2007 from the complainant. Rather by giving suggestions to

different prosecution witnesses during their cross-examination,

the appellants have succeeded in creating reasonable doubt over

the presence of Appellant No. 2 at RPF Police Station, Reengus on

13.07.2007 and it was shown that his duty was at railway

reservation window from 7.45 A.M. to 4.50 P.M. and he was not

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available in the police station. After being relieved from duties,

Appellant No. 2 straightway went to his railway quarter. Thus,

there is no legitimate piece of evidence to prove demand and

acceptance of part of bribe amount on 13.07.2007 by either of the

appellants, i.e. Appellant No. 1 and Appellant No. 2. So far as

alleged verification on 26.07.2007 through voice recording is

concerned, the transcription thereof do not suggest any specific

overt act on the part of the appellants with regard to make any

demand and rather, it was the complainant, who time and again,

tried to offer some money voluntarily to Appellant No.1, who did

not tender his specific acceptance for the same. Even the

transcriptions of conversation of the complainant with Appellant

No. 3 also do not reflect any clear demand of bribe money from

the complainant. Thus, so far as aspect of demand of bribe is

concerned, the prosecution has utterly failed to prove the same

beyond reasonable doubt.

46. As regards question of pendency of work of the

complainant with either of the appellant is concerned, Appellant

No. 1 was in-charge of the police station where Appellant No. 2

was Bench Clerk (Munshi) and Appellant No. 3 was simply a

Constable/Guard. The work alleged to be pending as stated by the

complainant was that in a case registered against the complainant

and his brother, Appellant No. 1 and 2 allegedly promised him to

dilute the case at the time of filing of charge sheet and assured

him that name of the complainant would be removed from the

array of the accused and a weak case would be prepared against

his brother Ramniwas so that the offence would be compounded

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on the first date of hearing provided the complainant was agreed

to pay Rs. 5,000/- as bribe to the appellants. From perusal of the

material on record and statements of different witnesses and after

analysis thereof, it has come out that the complainant and his

brother were booked by one other officer, namely, R.S. Kasana

and the investigation of the offence was assigned to Shri I.D.

Khan. It has also come out from the record that investigation was

conducted and entire documents were signed by Shri I.D. Khan

and not by Appellant No. 1. It also emerges from the record that

the complainant was allegedly called by Appellant No.1 and 2 on

26.07.2007 whereas the evidence on record reveals that after

completion of investigation, charge sheet was prepared by Shri

I.D. Khan and sent to Appellant No. 1 on 23.07.2007 for further

forwarding the same to higher authorities for according necessary

approval for the purpose of filing charge sheet before the

competent court and accordingly, the charge sheet was sent by

Appellant No. 1 to higher authorities on 24.07.2007 for necessary

approval. It has also come on record that in the charge sheet,

both, the complainant and his brother were arrayed as accused.

Therefore, under these circumstances, it cannot be said that there

was any work of the complainant pending with either of the

appellants, nor the appellants were in a position to extend any

undue benefit to the complainant. By the time, the trap party

allegedly conducted its proceedings on 26.07.2007, the file was

already sent by Appellant No. 1 to the office of higher authorities

two days back on 24.07.2007. Thus, it has also not been proved

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by the prosecution beyond reasonable doubt that any work of the

complainant was pending with either of the appellants.

47. So far as recovery/acceptance of bribe money is

concerned, it has been admitted by almost all prosecution

witnesses that no recovery of bribe money was made either from

Appellant No. 1 or Appellant No. 2. Prosecution has come out with

a case that by his gestures, Appellant No. 1 asked Appellant No. 3

to accept remaining bribe amount from the complainant. However,

there is no legitimate piece of evidence to prove such gestures,

except the statement of the complainant himself. Even otherwise,

there is ample evidence on record to prove that the complainant

forcibly attempted to put the currency notes in the pocket of

Appellant No. 3, which he did not accept and when the

complainant forced, Appellant No. 3 pushed away complainant's

hand and resultantly, all the currency notes were scattered on the

floor. Later on, the trap party collected the currency notes from

the floor. Even the chemical solution after washing of the hands of

Appellant No. 3 did not give the required result as the colour of

the solution was sandy and not pink, which is reuired for proving

the recovery of currency notes.

48. It has also come on record that at the relevant time,

Railway Magistrate was holding its camp court in Railway Police

Station, Reengus and the alleged trap proceedings took place in

front of his eyes and he also objected to the noises occurred at

the relevant time. Staff of Railway Court and other persons were

also present there on the spot, however, the prosecution has

utterly failed to produce any of such independent witness or even

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the Railway Magistrate to prove the factum of

recovery/acceptance of bribe amount. Thus, the entire evidence

produced by the prosecution was completely inconsistent and

sketchy and the prosecution has utterly failed to prove the

charges against the appellants beyond reasonable doubt.

49. As there is no evidence on record in order to prove

demand and recovery of bribe money in the present case, there is

no question of drawing presumption under Section 20 of the Act of

1988 and even otherwise, there is no observation/finding recorded

by the trial court in the impugned judgment with regard to

drawing any such presumption.

50. At the first place, it would be appropriate to reproduce

Section 7 of the Act of 1988 as it was existing at the relevant time

for understanding the essential ingredients of the offence and for

easy reference:

"7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

Explanations.--(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification." The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

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(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."

51. The twin conditions i.e. 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 section 7 of the Act. In

order to bring the accused to book, the prosecution has to prove

the demand of 'illegal gratification' and its 'subsequent

acceptance' either by direct evidence or circumstantial evidence.

In the case at hand, the demand or recovery/acceptance of illegal

gratification has not been proved beyond reasonable doubt by the

prosecution.

52. In the case of Selvaraj (supra), the Hon'ble Surpeme

Court observed as under :-

"15.Coming to the question whether the view taken by the trial court while acquitting the accused was probable, we find that in view of the fact that complainant Peter Philip, CW 1 died before the trial, as such he was not available for cross- examination with respect to the facts which were in his knowledge as to the demand of bribe and its payment. We have to carefully look into the other evidence available. In the absence of the complainant, the onus lay upon the prosecution to adduce credible evidence and to prove the guilt beyond the periphery of doubt. K.M. Eregowda, PW 2, had stated that 10 to 12 other officials were sitting in the same room in which bribe was paid. Taking of bribe in the presence of 10 to 12 other officials of the Treasury Office is quite improbable. It assumes significance in the circumstances from which place the money was recovered; whether it was from the possession of the accused. PW 1 has stated that he found currency notes on the table, and the accused was standing behind the table. Whereas K.N. Eregowda, PW 2, has stated that the currency notes were

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kept by the accused beneath the book on the table. Another witness L. Somashekara, PW 8, IO, has stated that he recovered the money from the drawer of the table. The versions given by the three witnesses are different from each other. Even if we ignore the contradictions between the versions of PW 1 and PW 2, the contradiction with respect to place of recovery of money whether it was inside the drawer of table or was lying on the table beneath the book is material one and could not have been ignored."

53. In the case of N. Sunkanna vs State of Andhra

Pradesh, (2016) 1 SCC 713, the Hon'ble Supreme Court has

held as under :-

"5. The prosecution examined the other fair price shop dealers in Kurnool as PWs 3, 4 and 6 to prove that the accused was receiving monthly mamools from them. PWs 4 and 6 did not state so and they were declared hostile. PW 3 though in the examination-in-chief stated so, in the cross- examination turned round and stated that the accused never asked for any monthly mamool and he did not pay Rs 50 at any time. The prosecution has not examined any other witness present at the time when the money was demanded by the accused and also when the money was allegedly handed over to the accused by the complainant. The complainant himself had disowned his complaint and has turned hostile and there is no other evidence to prove that the accused had made any demand. In short there is no proof of the demand allegedly made by the accused. The only other material available is the recovery of the tainted currency notes from the possession of the accused. The possession is also admitted by the accused. It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine qua non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)

(d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of the three-Judge Bench of this Court in B. Jayaraj v. State of A.P. (2014) 13 SCC 55 and P. Satyanarayana Murthy v. State of A.P. (2015) 10 SCC 152."

54. The Hon'ble Supreme Court in the case of Neeraj

Dutta (supra) has observed as under:

"12. The Constitution Bench [Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731] was called upon to decide the question which we have quoted earlier. In para 88, the conclusions of the Constitution Bench judgment have been

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summarised, which read thus : (Neeraj Dutta case SCC pp.

775-77)

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

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

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

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

88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-

giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe- giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.

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88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

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

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

(i) and (ii) of the Act.

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

(emphasis in original and supplied)"

55. Thus, the demand for gratification and its acceptance

must be proved beyond a reasonable doubt. Since, 'demand' and

'acceptance' is not proved beyond reasonable doubt in the instant

case, the presumption under Section 20 of the Act of 1988 cannot

be raised. Even in the case of Neeraj Dutta (supra), the Hon'ble

Apex Court, while dealing with the presumption under Section 20

of the Act of 1988 has held as under :-

"14. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench has approved two

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decisions by the Benches of three Hon'ble Judges in B. Jayraj [B. Jayaraj v. State of A.P., (2014) 13 SCC 55] and P. Satyanarayana Murthy [P. Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152]. There is another decision of a three-Judges' Bench in N. Vijayakumar v. State of T.N., (2021) 3 SCC 687, which follows the view taken in B. Jayaraj and P. Satyanarayana Murthy."

56. The Hon'ble Supreme Court in the case of K.

Shanthamma (supra) has held that:

"10. We have given careful consideration to the submissions. We have perused the depositions of the prosecution witnesses. The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Section 7 of the PC Act.

11. In P. Satyanarayana Murthy v. State of A.P. [(2015) 10 SCC 152], this Court has summarised the well-settled law on the subject in para 23 which reads thus : (SCC p. 159)

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)

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

(emphasis supplied)"

57. From the evidence of the prosecution witnesses, it

appears that the witnesses have not supported the prosecution's

case regarding demand and acceptance of money by the

appellants. The prosecution has sought to place reliance on the

testimony of its departmental witnesses, but their evidence suffers

from infirmities and contradictions. Thus, the evidence on the

point of demand and acceptance of bribe, has not been proved by

the prosecution beyond all reasonable doubt.

58. As held by the Hon'ble Supreme Court in the case of P.

Somaraju (supra), the foundational facts of demand and

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acceptance of a bribe must be proved beyond reasonable doubt

before invoking statutory presumption under Section 20 of the

Prevention of Corruption Act. The Supreme Court reiterated that

appellate courts have the power to reappreciate evidence and that

mere recovery of money without proof of demand is insufficient

for conviction. Relevant paras of the above judgment are as

reproduced as under:

"18. The statutory presumption under Section 20 of the PC Act is not automatic and arises only once the foundational facts of demand and acceptance are proved. The same has been reiterated time and again by this Court; in the recent decision of Rajesh Gupta v. State through Central Bureau of Investigation9, it was held:

"17. For an offence under Section 7 of PC Act, the demand of illegal gratification is a sine qua non to prove the guilt. Mere recovery of currency notes cannot constitute an offence under Section 7 of PC Act, unless it is proved beyond reasonable doubt that accused voluntarily accepted the money, knowing it to be a bribe. The proof of acceptance of illegal gratification can follow only if there is proof of demand."

19. It is therefore vital to examine these elements before the circumstance of recovery can assume any significance. We once again rely on the observation of this Court in Rajesh Gupta (supra):

"16. ....The law is well-settled by the judgments of this Court in Panna Damodar Rathi v. State of Maharashtra, (1979) 4 SCC 526 and Ayyasami v. State of Tamil Nadu, (1992) 1 SCC 304, whereby it has been clarified that the sole testimony of the complainant, who is the interested witness, cannot be relied upon without having corroboration with the independent evidence."

23. In contrast, the defence has consistently maintained that the alleged demand and acceptance of bribe never took place. According to the appellant, the complainant entered his office alone and during the appellant's brief absence, placed the tainted amount in the left-drawer of the table. Accordingly, when the trap-party entered, the appellant immediately denied having received any money, and the phenolphthalein test on both hands yielded negative results."

59. Similarly, in State of Lokayuktha Police,

Davanagere vs. C B Nagaraj (supra), the Hon'ble Apex Court

ruled that mere recovery of tainted money does not suffice; the

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entire chain of demand, acceptance and recovery must be

established. The Hon'ble Supreme Court held as under:

"25. It is pertinent to note that till 05.02.2007, when the Respondent had conducted the physical/spot inspection, there is not even a whisper of there being any demand of bribe. Moreover, when the Complainant went back to the Respondent's office at 5:30 PM with the money, the prosecution case itself as per the deposition of its witnesses makes it clear that the Respondent had informed the Complainant that he had already forwarded the concerned file. Thus, if the same is accepted, there was no occasion for the Complainant to go ahead with paying the amount, which he claims to be in the nature of bribe demanded by the Respondent, after the work for which the bribe was purportedly sought, had already been done. The observation of the High Court to this extent is correct that just because money changed hands, in cases like the present, it cannot be ipso facto presumed that the same was pursuant to a demand, for the law requires that for conviction under the Act, an entire chain - beginning from demand, acceptance, and recovery has to be completed. In the case at hand, when the initial demand itself is suspicious, even if the two other components - of payment and recovery can be held to have been proved, the chain would not be complete. A penal law has to be strictly construed [Md. Rahim Ali v. State of Assam, 2024 SCC OnLine SC 1695 @ Paragraph 45 and Jay Kishan v. State of U.P., 2025 SCC OnLine SC 296 @ Paragraph 24]. While we will advert to the presumption under Section 20 of the Act hereinafter, there is no cavil that while a reverse onus under specific statute can be placed on an accused, even then, there cannot be a presumption which casts an uncalled for onus on the accused. Chandrasha (supra) would not apply as demand has not been proven. In Paritala Sudhakar v. State of Telangana,2025 SCC OnLine SC 1072, it was stated thus:

'21. As far as the submission of the State is that the presumption under Section 20 of the Act, as it then was, would operate against the Appellant is concerned, our analysis supra would indicate that the factum of demand, in the backdrop of an element of animus between the Appellant and complainant, is not proved. In such circumstances, the presumption under Section 20 of the Act would not militate against the Appellant, in terms of the pronouncement in Om Parkash v. State of Haryana,(2006) 2 SCC 250:

'22. In view of the aforementioned discrepancies in the prosecution case, we are of the opinion that the defence story set up by the appellant cannot be said to be wholly improbable. Furthermore, it is not a case where the burden of proof was on the accused in terms of Section 20 of the Act. Even otherwise, where demand has not been proved, Section 20 will also have no application. (Union of India v. Purnandu Biswas [(2005) 12 SCC 576 : (2005) 8 Scale 246] and T. Subramanian v. State of T.N. [(2006) 1 SCC 401 : (2006) 1 Scale 116])' (emphasis supplied) (emphasis in bold is original, underlining is ours)"

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60. In the case of Madan Lal (supra), conviction was

reversed by the Hon'ble Supreme Court, where bribe notes were

recovered from floor, negating presumption under Section 20. It

was held as under:

"18. On an examination of the evidence, there is considerable doubt raised in our mind, which qualifies as reasonable doubt, as to whether there was acceptance of bribe amounts by both the accused. True, the officers of the trap team spoke about the handing over of the money by the complainant to the 1st accused who handed over half, to the 2nd accused; which amounts were said to have been put by both the accused in their trouser pockets. PW 8 who led the trap team merely spoke of a recovery of the bribe amounts from the possession of the accused and the hands and trousers of the accused having positively reacted to the test solution. The said deposition is contrary to the statements made by the independent witnesses that some notes were found thrown on the floor. None of the officers spoke of any of the accused having taken out the notes and thrown it on the floor."

61. In Dileepbhai Nanubhai Sanghapi (supra), the

Hon'ble Supreme Court quashed proceedings citing lack of credible

demand or acceptance evidence. The Hon'ble Supreme Court held

as under:

10. The learned Senior Counsel appearing for the appellant had clearly pointed out that at this stage no presumption can be raised under Section 20 especially when the provision speaks of proof offered at a trial; that the public servant accused of an offence, has demanded, accepted or obtained or attempted to obtain for himself or for any other person any undue advantage from any person. Only on such proof offered, the presumption can be raised that the demand or receipt of illegal gratification was as a motive or reward such as is mentioned in Section 7; without consideration or inadequate consideration. In the present case from the materials produced before the Special Court there is nothing indicating even an allegation of demand of bribe by the second accused which would clearly indicate that there is no question of any proof being offered, on that aspect, at the trial. In this context, we have to look at the Constitution Bench decision in Neeraj Dutta4.

11. Neeraj Dutta3 held so, in paragraph 88:

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

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

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

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

88.4.(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence.

Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.

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

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on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

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

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

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

12. It has been categorically held by the Constitution Bench that the proof of demand (or an offer) and acceptance of illegal gratification by a public servant is a fact in issue in the criminal proceeding and is a sine qua non to establish the guilt of the accused public servant under Sections 7 and 13 of the Act. Unless proof is offered to the satisfaction of the Court that there is a demand and acceptance of illegal gratification, the presumption would not arise. The presumption under Section 20 of the Act cannot arise on the mere allegation of a demand and acceptance of illegal gratification as rightly pointed out by the appellant. The question of presumption does not arise in the present case where the Special Court had merely examined the complainant and also summoned three witnesses, the officers of the investigation team, under Section 3001 of the Cr.P.C. for the purpose of recording their statements. This is pre-charge evidence based on which summons have been issued to the accused Nos. 2 to 7. However, even a prima- facie finding has to be on the basis of allegations containing the definite ingredients for which proof could be offered at the trial, giving rise to the presumption under Section 20 of the Act, which presumption is also rebuttable."

62. Co-ordinate Bench of this Court at Principal Seat

Jodhpur in the case of Babu Lal vs State of Rajasthan (supra)

emphasized the necessity of establishing both demand and

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acceptance beyond reasonable doubt, warning against convicting

solely on recovery in traps. Relevant observations are quoted

hereunder:

"13. From very inception especially at the time of trap spontaneous explanation of the appellant was that Rs.3000/- paid to him by the complainant was processing fee. The complainant(PW.1) has admitted that he was conscious of the fact that processing fee, service tax and documentation charged are to be borne by the complainant. He further admitted that 3% of the loan amount is charge as processing fee besides other expenses. His experience is based on the previous personal loan of Rs.50,000/- taken by him from the bank. PW.2 Ramakant Purohit, an Officer of the Bank of Baroda has deposed that from 3% to 5% of the loan amount are charged from borrower as processing fee besides stamp of Rs.100/-, this amount is charged either before sanction of the loan or it can be deducted from the account of the borrower.

It is not disputed that processing fee was not paid by the complainant borrower nor it was deducted from his bank account. PW.2 admitted in cross-examination that it is not necessary that processing fee should be recovered from the bank account only, the borrower can deposit in cash as well. In the last paragraph, he has given calculation of the processing fee + services charges, which is 10.30% + Expenses Charged and stamp duty, which comes to the calculation of Rs.3,000/-. The prosecution has not controverted the evidence of PW.2 on the aforesaid issue, rather PW.2 is a competent witness, being an Officer of the Bank to make statement on the issue. PW.9 Ulhas Prabhakar Sangekar is General Manager of Bank of Baroda, who had accorded sanction for prosecution of the appellant, this witness has also deposed about requirement of processing fee, which is 3% of the loan amount along with service tax etc. Thus, from the evidence on the record, it transpires that no processing fee was ever paid by the complainant earlier nor processing fee was deducted from his bank account and instantaneous explanation of the appellant was that Rs.3,000/- was paid against processing fee creates doubt that the prosecution has proved acceptance of bribe.

In N. Sunkarna Vs. State of A.P. reported in (2016) 1 SCC 713, the Hon'ble Supreme Court stated as follows:-

"It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence Under Section 7, since demand of illegal gratification is sine-qua-non to constitute the said offence.

It is only on proof of acceptance of illegal gratification that presumption can be drawn Under Section 20 of the Act that such gratification was received for doing or for bearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three-Judge Bench of

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this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 and P. Satyanarayna Murthy v. The District Inspector of Police and Anr. (2015 (9) SCALE 724]."

Identical issue was there before the Hon'ble Madras High Court in State Rep. By Superintendent of Police, Vigilance & Anti Corruption, Chennai Vs. Subramanian & Ors. reported in 2006 2 MLJ (Cri.) 1001 stated as follows:-

"23.....................It is settled law that where the accused gives a spontaneous explanation right at the moment the crime is committed the explanation becomes res gestae within the meaning of Section 6 of the Evidence Act. Even if such statement is of doubtful admissibility in a case of corruption because the investigation could be set to have started before the statement was made, it should be admissible especially when it is exculpatory statement as the conduct of the accused under Section 8 of the Evidence Act. P.W.5 has expressly admitted that A.1 and A.2 Immediately explained MO.1 and MO.2 as having been received for flag day. This spontaneous reaction has been corroborated by the Head of the Office in his questioning under Section 313 Cr.P.C., But the prosecution has Insidiously scuttled the evidence of the same by posthumously casting him as the third accused. This afterthought is clearly attested by the fact that A.3 had signed as witness and stood as surety for A.1 and A.2.

24. In the landmark judgment of Sitaram Vs. State of Rajasthan (AIR 1975 SC 1432) the Apex Court held that mere recovery of money was not enough to entitle the drawing of presumption under Section 20 of the Prevention of Corruption Act. This principle was further reinforced by the same Supreme Court in the case of Surajmal Vs. State of Delhi (AIR 1979 SC 1408) in which it held that mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in this case was not reliable to prove payments of prior demand to show that the accused voluntarily accepted the money as illegal gratification. In this case obviously the circumstances in which the money was paid clearly and directly contradict the prosecution's imputations."

14. To summarise, the prosecution has failed to prove beyond reasonable doubt that any demand or acceptance of gratification was made out against the appellant. Furthermore, the prosecution case is apparent that entire allegation of demand and payment was made only after the loan was sanctioned and disbursed to the bank account of the of complainant. Since the complainant had grudge for not getting loan of entire Rs.1 lakh as claimed, the complainant purposely put the authorities of ACB under misunderstanding and managed a concocted case against the appellant. The spontaneous explanation of the appellant that amount, as paid to the appellant, was against the processing fee of the loan and there is no evidence that processing fee was not paid earlier nor was deducted from

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the bank account. The prosecution failed to dispel the explanation of the appellant which creates further doubt on the prosecution case."

63. In Jagtar Singh (supra), the Hon'ble Supreme Court

clarified demand and its acceptance as sine qua non for conviction

under the Prevention of Corruption Act and held as under:

"9. The conclusions of the Constitution Bench judgment [Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731 referred above, have been summarised in para 88, which read thus : (Neeraj Dutta case2, SCC pp. 776-77)

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

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

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

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

88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer

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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 complaint 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 presumption can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

88.7.(g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to 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 sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature."

10. The referred question was answered in para 90 of the aforesaid judgment, which reads thus: (Neeraj Dutta case 2, SCC p. 777)

"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 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."

(emphasis in original and supplied)

11. In the case in hand, Jit Singh, complainant as well as Chamkaur Singh, shadow witness have turned hostile. The trial court had specifically held that there is no evidence produced on record to prove the demand of illegal

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gratification. It is not the case in which the demand was reiterated when the money was allegedly paid to him.

Gurjinder Singh (PW 8) is only a witness who stated that he had recovered the money from the appellant. The High Court has passed its judgment on the assumption that the money having been recovered from the appellant, there was demand of illegal gratification. This is not a case where there was circumstantial evidence to prove the demand.

12. If the evidence produced on record by the prosecution is examined in the light of the law laid down by the Constitution Bench in Neeraj Dutta v. State (NCT of Delhi)2, the conviction and sentence of the appellant cannot be legally sustained.

13. The appeal is, accordingly, allowed. The impugned order passed by the High Court and that of the trial court are set aside. The appellant is acquitted of the charges and his bail bond stands discharged."

64. In the case of K. Shanthamma (supra), while holding

that the proof of demand of bribe by a public servant and its

acceptance by him is sine quo non for establishing the offence

under Section 7 of the PC Act.

65. In the case of Selvaraj (supra), while observing that

recovery of tainted money is not sufficient to convict the accused

and rather demand is required to be proved by adducing clinching

evidence, the Hon'ble Apex Court held as under:

"17. In A. Subair v. State of Kerala (2009) 6 SCC 587, this Court has laid down that illegal gratification has to be proved like any criminal offence and when the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest the conviction on such evidence. This Court while recording acquittal, has laid down thus : (SCC p. 594, para 31)

"31. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt."

18. In State of Kerala v. C.P. Rao (2011) 6 SCC 450, it has been laid down that recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of the testimony of the complainant regarding the demand of bribe and when the complainant is not

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available for examination during the trial, court has to be cautious while sifting the evidence of other witnesses. Charge has to be proved beyond reasonable doubt. This Court has laid down thus : (SCC pp. 452-53, paras 12-13)

"12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in para 28 of A. Subair made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court.

13. In coming to this conclusion, we are reminded of the well-settled principle that when the Court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in an order of acquittal has been very succinctly laid down by a three-Judge Bench of this Court in Sanwat Singh v. State of Rajasthan AIR 1961 SC 715. At SCR p. 129, Subba Rao, J. (as His Lordship then was) culled out the principles as follows : (AIR pp. 719-20, para 9)

'9. The foregoing discussion yields the following results : (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case v. King Emperor, 1934 SCC OnLine PC 42 afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) "strong reasons" are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.'"

19. In G.V. Nanjundiah v. State (Delhi Admn.) [1987 Supp SCC 266], it was laid down that the allegation of bribe taking should be considered along with other material circumstances. Demand has to be proved by adducing clinching evidence. When the fact indicating that the complainant was aware of the amount, was not withheld by the accused, this Court disbelieved the allegation of the complainant meeting the accused and presence of strangers at the time of giving bribe was held to be unnatural.

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20. Thus, acceptance of the bribe has not been established by adducing cogent evidence. In view of the circumstances discussed above, the view taken by the trial court was a plausible one and could not have been interfered with by the High Court, that too without coming to the close quarters of the reasoning and reappraisal of the evidence. The judgment of the High Court is not only cryptic but also no attempt has been made to look into the evidence -- both oral and documentary. Thus, we have no hesitation in setting aside the judgment and order passed by the High Court and restore that of the trial court. The appeal is allowed."

66. Similarly in the case of Satveer Singh (supra), the

Hon'ble Supreme Court reinforced this legal principle creating a

well-settled precedent on the mandatory requirement to prove

demand along with acceptance beyond reasonable doubt and held

as under :

"33. The learned senior counsel for the appellant has also placed reliance upon the case of Banarsi Das (AIR 2010 SC 1589) referred to supra wherein it was held that:

"24. In M. K. Harshan v. State of Kerala (AIR 1995 SC 2178) this Court 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, held as under:

"8. ... 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."

The above-said paragraph from the above mentioned case would go to show that the divergent findings recorded by the High Court on the factum of demand and acceptance of illegal gratification by the appellant is not proved in this case. In the said case this Court in unequivocal terms has held that mere demand by itself is not sufficient to establish the offence under the Act. The other aspect, namely acceptance is also very important. There must be clinching evidence with the tacit approval of the accused that money was put by PW 2 on the steel cot as stated by him in his evidence as illegal gratification. In the case in hand, as per the evidence of PW-2 and PW-3, the illegal gratification was in a black rexine bag with a broken zip which was put on a steel cot. As the contents of the bag were not within the

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knowledge of the accused, therefore, the relevant aspect of the case that the appellant has accepted the illegal gratification as required under Section 7 of the Act is not proved by the prosecution by adducing cogent evidence in this regard.

36. The prosecution has placed reliance upon the judgment of this Court viz. State of Madras v. A Vaidhyanatha Iyer 10 in support of the prosecution to justify the findings and reasons recorded by the High Court on the charges levelled against the appellant, to reverse the acquittal and to convict and sentence him for the offence, the relevant portion from the above referred case reads thus:

"13. ....Where it is proved that a gratification has been accepted, then the presumption shall at once arise under the section. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. It may here be mentioned that the legislature has chosen to use the words "shall presume" and not "may presume", the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but Section 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence e.g. presumptions, and therefore should have the same meaning. "Shall presume" has been defined in the Evidence Act as follows: Whenever it is directed by this Act that the court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.

It is a presumption of law and therefore it is obligatory on the court to raise this presumption in every case brought under Section 4 of the Prevention of Corruption Act because unlike the case of presumption of fact, presumptions of law constitute a branch of jurisprudence. While giving the finding quoted above the learned Judge seems to have disregarded the special rule of burden of proof under Section 4 and therefore his approach in this case has been on erroneous lines".

It is rightly contended by the learned senior counsel on behalf of the appellant that the presumption of the guilt is not proved in the case on hand as the prosecution has failed to prove the ingredients of the provision of Section 7 of the Act, viz. demand and acceptance of illegal gratification by the appellant to constitute an offence alleged to have been committed by him. Therefore, the reliance placed on the evidence of prosecution witnesses i.e. PW-2, PW-3 and others by the respondent's counsel, the relevant portion of which is extracted in the aforesaid portion of the judgment, does not amount to presumption of offence as provided under Section 20 of the Act. Therefore, the question of onus of proof to disprove the presumption did not arise at all on the part of the appellant."

67. Furthermore, in the case of State of Punjab vs

Madan Mohan Lal Verma (supra), the Hon'ble Supreme Court

held that before calling accused to explain recovered money, the

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prosecution must first establish foundational facts of demand and

agreement clearly. Para no. 10 and 11 of the judgment being

relevant are being reproduced as under:

"10. It is a settled legal proposition that in exceptional circumstances, the appellate court for compelling reasons should not hesitate to reverse a judgment of acquittal passed by the court below, if the findings so recorded by the court below are found to be perverse i.e. if the conclusions arrived at by the court below are contrary to the evidence on record; or if the court's entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice; or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the court below bolsters such presumption of innocence. (Vide Abrar v. State of U.P.[(2011) 2 SCC 750] , Rukia Begum v. State of Karnataka [(2011) 4 SCC 779] and State of M.P. v. Dal Singh [(2013) 14 SCC 159)

11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652] , T. Subramanian v. State of T.N. [(2006) 1 SCC 401], State of Kerala v. C.P. Rao [(2011) 6 SCC 450] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642.)"

68. In the case of B. Jayaraj (supra), the Hon'ble

Supreme Court has held as under:

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"8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.

9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."

69. Further, in the case of Mir Mustafa Ali Hasmi

(supra), it has been held by the Hon'ble Surpeme Court, as

under:

"32. It is the settled convention in such cases that the Trap Laying Officer, makes efforts to verify the factum of demand of bribe by the public servant before initiating the trap proceedings. The factum of demand of bribe can also be verified by recording the telephonic conversation between the decoy and the suspect public servant. Often, a recording device is secretly placed on the person of the decoy to record the conversation which would transpire during the course of acceptance of bribe by the public servant. However, no such steps were taken by the DSP (PW 10), who straight away organised the trap without making any effort whatsoever to verify the factum of demand attributed to the appellant (AO-

1) and AO-2.

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33. It is relevant to mention here that PW 2 was the only witness associated by the DSP/TLO (PW 10) to accompany the complainant (PW 1) for witnessing the transaction of demand and acceptance of bribe. Evidently thus, PW 2 was kept as a shadow witness in the case. During the course of trial, the complainant (PW 1) and PW 2 both admitted that they were close friends. The complainant (PW 1) and PW 2 being close friends, it can safely be assumed that PW 2 was an interested witness. Hence, it is also manifested that TLO/DSP (PW 10) did not make any effort whatsoever to associate an independent person to act as a shadow witness in the trap proceedings. It is recorded in the memorandum of the pre-trap proceedings (Ext. P-4) that it was the DSP (PW

10) who summoned PW 2 and asked him to act as a shadow witness to oversee and overhear the transaction of acceptance of illegal gratification. However, this fact is totally contradicted by the version as set out in the evidence of the complainant (PW 1) and PW 2. Both categorically stated that it was the complainant (PW 1) who asked PW 2 to accompany him during the trap proceedings scheduled to take place on the morning of 23-1-2003.

34.In normal course, before proceeding to the stage of trap, it was incumbent upon the DSP (PW 10) to get an independent verification done of the alleged demand which fact assumes prominence considering the circumstance that the accompanying shadow witness, Ramesh Naidu (PW 2) is a close friend of the complainant (PW 1) who himself bore a grudge against the appellant (AO-1) on account of the fine of Rs 50,000 imposed on the sawmill."

70. Co-ordinate Bench of this Court at Principal Seat,

Jodhpur in the case of Dr. Rajkumar Agarwal (supra) has held

as under :

"77. In order to establish commission of offence under Section 7 of the Act which relates to a public servant taking bribe, it is required that a demand of illegal gratification is made and then, there is acceptance in that respect. The requirement of proof of demand is the most essential ingredient to be proved in order to sustain a conviction under Section 7 of the Act against the accused. Even if there is recovery from the accused or the accused is found to be in possession of the amount of illegal gratification, then too, the element of demand is required to be established in order to book the accused for the offence relating to a public servant taking bribe. In the present facts and circumstances, it is very much evident that though there is alleged recovery from the drawer of the public servant, i.e., the appellant, but the same is not preceded by a demand or an attempt to obtain any undue advantage or any acceptance on part of the appellant. There is no material available on record that reflects that the accused communicated the assurance of conducting the operation upon receiving a certain amount and the same is cemented by the testimonies of the patient herself as well as her husband as discussed in the preceding paragraphs of the judgment. The proof of demand of bribe by a public servant and its acceptance by him are sine qua

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non for establishing the offence under Section 7 of the Act and failure of the prosecution to prove the demand would entitle the accused for acquittal since mere recovery of amount cannot be the sole basis for conviction of an accused under Sections 7 to 13 of this Act.

79. The twin conditions required to be fulfilled so as to constitute an offence under Section 7 of the PC Act have not been satisfied in the facts and circumstances of the instant matter.

81. The judgment of N. Vijayakumar Vs. State of Tamil Nadu reported in AIR 2021 SC 766 passed by a three- judge bench of Hon'ble the Supreme Court sheds light in this regard and it is considered important to reproduce the relevant paragraph of the said judgment herein below for reference:

"12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the Accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala: (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh: (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case Under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that Accused voluntarily accepted money knowing it to be bribe.

Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption Under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved."

(Emphasis Supplied)

82. The charge against the accused cannot be considered proved by the mere recovery of the alleged illegal gratification payment alone and conviction cannot stand in the absence of proof of exchange of a bribe or proof that the accused accepted the money knowing it to be a bribe or proof that a demand was, in fact, made in the first place. Furthermore, this Court also finds that the concerned person, i.e. the patient for whose operation the bribe was allegedly taken herself deposed in favour of defence as defence witness no. 2 and therefore, the superstructure upon which the presumption has been drawn against the accused by the learned court below is without any sufficient foundation; since it has neither been proved that a demand of illegal gratification was made by the accused herein nor does there remain any witness whose testimony speaks to the culpability of the accused.

83. The mere fact of recovery of tainted amount from the accused does not ipso facto bring the matter within the scope of Prevention of Corruption Act unless a fact of demand and acceptance of bribe is established and the recovery is effected from the exclusive and conscious possession of the accused.

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84. As an upshot of the discussion made herein above, it is observed that sufficient material is not there on record to bring home the guilt of the appellant. The order impugned suffers from serious illegality and gross impropriety and therefore, the same is not sustainable in the eyes of law. There is force in the criminal appeal and therefore, the same deserves acceptance."

71. The criminal appeal filed by the accused persons

requires a thorough examination of both the prosecution evidence

and the settled legal principles applicable under Sections 7 and 13

of the Act of 1988. The allegations against the appellants revolve

primarily around the charge of demanding and accepting illegal

gratification. The crucial question is whether the prosecution has

satisfactorily established a clear and specific "demand" by the

accused for such gratification and whether the recovery of the

bribe amount was legitimately established.

72. In the light of above legal principles, when the facts

and evidence of the present case is analysed, this Court finds that

the essential ingredients for establishing the commission of

offence, i.e. the demand and acceptance are not fully proven by

the prosecution. The complainant's testimony and prosecution

evidence in this case is riddled with inconsistencies, contradictions

and lacks credible independent corroboration on the crucial issues

of demand and acceptance.

73. The Hon'ble Supreme Court in Neeraj Dutta v. State

(supra) along with in other cases such as B. Jayaraj (supra),

has elucidated that a "demand" must be a specific and proactive

solicitation by the public servant in connection with the discharge

of official duties. The mere voluntary offer of money by the

complainant, particularly when unaccompanied by any active

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solicitation or coercion by the accused, does not satisfy the

requirement of demand under the statute. Further, mere recovery

of money from the floor, without proof of demand and acceptance,

does not constitute an offence and the presumption under Section

20 of the Act of 1988 is not attracted in such cases.

74. In this case, the prosecution has also failed to establish

the recovery of the bribe amount in a legally acceptable manner.

It is on record that the accused Sanwarmal (Appellant No. 3) did

not accept the currency notes, which were the subject matter of

the alleged bribe. Instead, these notes were found scattered on

the floor at the time of the trap, evidently placed there due to the

complainant's coercion or forcing. Such a recovery, where the

accused has neither accepted, nor possessed the currency notes,

cannot be construed as a valid "recovery" under the law.

75. The absence of both a clear demand and a lawful

recovery underscores a fatal gap in the prosecution's case and

thus, no credible evidence exists to demonstrate that the accused

persons demanded a bribe. The currency notes allegedly

constituting the bribe were neither accepted, nor voluntarily

possessed by the accused, rendering the so-called recovery

ineffective in the eyes of law. The prosecution has consequently

failed to discharge the burden of proof beyond reasonable doubt.

76. The appellants have also been convicted for offence

under Section 13(1)(d) of the Act of 1988. At this stage, it is also

relevant to refer to the provisions of Section 13(1)(d) of the Act of

1988 prior to amendment made in the year 2018, which reads as

under:-

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

(a) xxxxxx

(b) xxxxx

(c) xxxxxx

(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"

77. It is clear from a reading of clause (d) that all the three

wings of clause (d) of Section 13(1) of the Act of 1988 are

independent and alternative and disjunctive for constituting the

ingredients for the offence under Section 13(1)(d) of the Act of

1988 as is clear from the use of the word 'or' at the end of each

clause. Thus, under Section 13(1)(d)(i) obtaining any valuable

thing or pecuniary advantage by corrupt or illegal means by a

public servant in itself would satisfy the requirement of criminal

misconduct under Section 13(1)(d) of the Act of 1988. On the

same reasoning "obtaining a valuable thing or pecuniary

advantage merely by abusing official position" as contemplated

under Section 13(1)(d)(ii) of the Act of 1988 in itself would satisfy

the ingredients of criminal misconduct under Section 13(1)(d) of

the Act of 1988. However, a charge under Section 13(1)(d) of the

Act of 1988 has to be fairly specific in respect of the offence, the

accused is required to face in a criminal trial. It would not be

enough to say that the accused committed criminal misconduct

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punishable under Section 13(1)(d) of the Act of 1988. The offence

of criminal misconduct is one contemplated in all or any of the

four clauses (a) to (d) of Section 13(1) of the Act of 1988 and

where the accused is sought to be made guilty only under clause

(d), it must be specified. The prosecution has to prove that the

public servant intentionally, dishonestly, fraudulently made any

efforts in obtaining pecuniary advantage either for himself or

others. The element of dishonesty is implicit in Clauses (i) & (ii) of

Section 13(1)(d) of the Act of 1988.

78. It is settled proposition of law that so far as the offence

under Section 13(1)(d) read with 13(2) of the Act of 1988 is

concerned, the necessary ingredient for constituting aforesaid

offence is that public servant has used corrupt or illegal means or

otherwise abused his position as public servant and obtained a

valuable thing or pecuniary advantage for himself or any other

person. The intention of the legislation is not to punish a public

servant for erroneous decision, but to punish for corruption. To fall

within the four corners of sub-clause (ii) of Clause (d) of sub-

section (1) of Section 13 of the Act of 1988, the decision/conduct

of the public servant must be dishonest, amounting to corruption.

79. To attract the term 'abuse' as contained in Section

13(1)(d) of the Act of 1988, the prosecution has to establish that

the official concerned used his position for something which is not

intended. The sum and substance of the discussion is that

dishonest intention is the gist of the offence under Section 13(1)

(d) of the Act of 1988. A fundamental principle of criminal

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jurisprudence with regard to the liability of an accused is the

element of mens rea.

80. Hon'ble Apex Court in the case of C.K. Jaffer Sharief

Vs. State (through CBI), 2013(1) SCC 205, while considering

the question of criminal liability, has observed as under :-

"17. It has already been noticed that the appellant besides working as the Minister of Railways was the head of the two public sector undertakings in question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the appellant in performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts, demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four persons. If the statements of the witnesses examined under Section 161 CrPC show that the aforesaid four persons had performed certain tasks to assist the Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by any corrupt or illegal means or by abuse of the position of the appellant as a public servant can arise. As a Minister it was for the appellant to decide on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to perform his official duties while in London. If in the process, the rules or norms applicable were violated or the decision taken shows an extravagant display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the offence under Section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has also been expressed by this Court in M. Narayanan Nambiar v. State of Kerala [AIR 1963 SC 1116] while considering the provisions of Section 5 of the 1947 Act."

81. In the present case, since the prosecution failed to

produce any material to prove the demand of bribe, its acceptance

on the part of appellant so also pendency of work on the date of

trap, therefore, as a consequential corollary, the prosecution has

failed to show that the appellants, with dishonest intention,

committed any acts and obtained any valuable thing or pecuniary

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advantage. Moving on to the concept of standard of legal proof,

the well-entrenched principle of criminal jurisprudence that an

accused is presumed to be innocent and, therefore, the burden

lies on the prosecution to prove the guilt of the accused beyond

reasonable doubt is required to be considered here.

82. The sum and substance of the above reasonings go to

show that there is no acceptable or clinching evidence proving

that the appellants, with dishonest intention, committed any acts

and obtained any valuable thing or pecuniary advantage.

However, the trial court has utterly failed to appreciate the

evidence in right perspective, nor has correctly applied the

principles of law.

83. In light of above facts and settled legal principles, the

conviction of the accused appellants under Sections 7 and 13 (1)

(d) read with Section 13(2) of the Act of 1988 cannot be

sustained. Consequently, the charge of Section 120-B also cannot

be maintained, being solely dependent upon the above primary

charges. To uphold the conviction under such circumstances would

amount to manifest injustice.

84. Accordingly, the appeal deserves to succeed and the

same is hereby allowed. The impugned judgment of conviction and

order of sentence dated 29.05.2023 passed by the Special Judge,

Prevention of Corruption Act Cases, No. 1, Jaipur Metropolitan-II

in Criminal Regular Case No. 79/2008 (CIS Session Case No.

652/2014) is hereby quashed and set aside. The accused-

appellants are acquitted of all the charges framed against them.

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The appellants are on bail and need not surrender. Bail Bonds of

the accused-appellants are hereby discharged.

85. The appellants are directed to furnish personal bond in

the sum of Rs. 50,000/- and a surety bond in the like amount in

accordance with the provisions of Section 437A of the Code of

Criminal Procedure, 1973 (Cr.P.C.)/Section 481 of the Bharatiya

Nagarik Suraksha Sanhita, 2023 (BNSS) before the Registrar

(Judicial) of this Court within two months from today to the effect

that in the event of filing of special leave petition against this

judgment or on grant of leave, the apellants, on receipt of notice

thereof, shall appear before the Hon'ble Supreme Court. The bail

bonds will be effective for a period of six months.

86. All pending applications, if any, also stand disposed of.

87. Record of the Trial Court be sent back immediately.

(ANAND SHARMA),J

MANOJ NARWANI /

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