Allahabad High Court
Mohd. Saleem Khan vs State Of U.P. Thur. Superintendent Of … on 1 July, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH In The Hon'ble High Court Of Judicature At Allahabad Sitting at Lucknow * * * Neutral Citation No. - 2025:AHC-LKO:36965 A.F.R. Judgment Reserved on: 26.03.2025 Judgment Delivered on: 01.07.2025 Court No. - 15 Case :- CRIMINAL APPEAL No. - 465 of 2013 Appellant :- Mohd. Saleem Khan Respondent :- State Of U.P. Thur. Superintendent Of Police Central Bureau Counsel for Appellant :- P. Chakravarty,Pranjal Krishna Counsel for Respondent :- Bireshwar Nath,Shiv P. Shukla Hon'ble Subhash Vidyarthi J.
1. Heard Sri Nandit Srivastava Senior Advocate assisted by Ms. Shahla Zubair and Sri Pranjal Krishna Advocates, the learned counsel for the appellant and Sri Anurag Kumar Singh, learned counsel for the CBI.
2. The instant appeal has been filed under Section 374(2) Criminal Procedure Code, 1973 read with Section 27 of the Prevention of Corruption Act, 1988 against the judgment and order dated 07.03.2013 passed by the learned Special Judge, C.B.I., Court No. 1, Lucknow in Criminal Case No. 2 of 2008 arising out of RC No. 0062008A0016/2008 under Sections 7 and Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988, Police Station C.B.I./A.C.B., Lucknow, whereby the trial Court has convicted the appellant for the offence under Section 7 of the Prevention of Corruption Act, 1988 and has sentenced him to undergo rigorous imprisonment for a period of three years and to pay Rs.15,000/- as fine. In case of failure to pay fine, the appellant would have to undergo rigorous imprisonment for an additional period of six months. The appellant has been acquitted of the offence under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988.
3. On 16.10.2008 Sri. Gayabudh Singh son of Sri. Surya Lal Singh gave a complaint to the Superintendent of Police, C.B.I., alleging that his father has taken a Kisan Credit Card loan of Rs.40,000/- and after he had deposited Rs.11,000/- towards repayment of the loan, the loan amount was waived off by the Government. The appellant, who was the Manager of Sarva U. P. Gramin Bank, had demanded Rs.3,000/- for issuing a no-dues certificate to his father. On the same date, the Superintendent of police made an endorsement that the complaint seems to be genuine and upon his order, an F.I.R. bearing RC No. 0062008A0016/2008 under Sections 7 and Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 was registered on 16.10.2008 itself.
4. A trap was laid on 17.10.2008. Two independent witnesses accompanied the trap team. The team members and a witness Dr. Harish Chandra Arya stayed outside the Bank’s branch whereas the complainant Gayabudh Singh and the shadow witnesses Sri. Vikas Bharti went inside the Bank. After sometime, Sri. Vikas Bharti came outside and gave a signal, whereupon the trap team and the other independent witnesses went inside the Bank and they caught the appellant red handed. At the instruction of the trap laying officer, the independent witnesses Dr. Harish Chandra Arya recovered Rs.2,500/- kept inside a passbook in the drawer of the appellant’s office table.
5. The Investigating Officer recorded statements of the complainant Gayabudh Singh under Section 161 Cr.P.C., who supported the prosecution case. The statement of one Jagdish Singh was recorded on 17.11.2008. He stated that the complainant did not do any work without taking bribe and the people of the area were very happy on the day the appellant was caught.
6. The Investigating Officer recorded statement of the shadow witness Sri. Vikas Bharti on 10.11.2008 and he stated that he had accompanied the complainant inside the bank, but he had not gone inside the cabin of the appellant. 5-6 persons were present inside the appellant’s cabin but they declined to become witnesses in the case. The complainant went near the appellant, he and the appellant talked to each other for about 2 minutes in low voices and the shadow witness could not hear the conversation. Thereafter the complainant took out the money from his upper pocket and passbook from his lower pocket, kept the money in the passbook and handed it to the appellant. The appellant took the passbook in his right hand, opened the passbook and saw something and kept the same in the drawer of his table. Thereafter the appellant gestured the complainant to go out and the shadow witnesses also came out of the bank with the complainant. Upon his giving the signal, the trap team went inside the bank and caught the appellant.
7. The Investigating Officer recorded the statements of the other independent witness Dr. Harishchandra Arya, the trap laying Officer Sri. Surendra Rai, Inspector C.B.I., Sri. Awdhesh Kumar Dwivedi, the Regional Development Manager, Sarva U. P. Gramin Bank and Sri. Pankaj Kumar Srivastava, a clerk working in the Bank.
8. The Investigating Officer submitted a charge-sheet dated 29.12.2008 against the Appellant for offences under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988
9. The trial Court framed charges for commission of the aforesaid offences on 31.05.2011.
10. The prosecution produced 8 witnesses. The complainant Gayabudh Singh was examined as PW-1. He stated that he had met the appellant for waiver of the old loan and taking a new loan. The appellant had told him that the old loan had been waived off but he had not received any order for granting a new loan. Some persons outside the Bank told that perhaps giving something might help. Some persons sitting at a hotel had given him a phone number and said that the complainant should go to him at Lucknow and he would get a K.C.C. very fast. The complainant categorically stated that he did not meet the appellant after waiver of the loan for getting a no-dues certificate. He stated that he had called on the phone number that was given to him, he was called to C.B.I. office at Lucknow and he had written the complaint as per the directions of C.B.I. officials with the object of getting a KCC loan. Sri. Surendra Rai had asked him to arrange the money. As the complainant did not did not support the prosecution case, he was declared hostile at the request of the prosecution.
11. During his cross-examination by the Public Prosecution, the complainant stated that he had not written the complaint by himself, he was made to write the complaint as per the dictation given to him. The complainant stated that statement recorded under Section 161 Cr.P.C. had not been given by him. The complainant stated that he had given the passbook with the money kept in it to the appellant in presence of a person from the C.B.I. and he had said that as his loan had been waived, an endorsement of nil dues be made on it. He had kept the pass book on the table of the appellant. He denied that the appellant had kept the pass book in the drawer of his table. He said that he had signed the recovery memo under pressure of the C.B.I. team. The appellant categorically denied that the appellant had demanded any bribe from him.
12. During the cross-examination conducted by the defence’ Counsel, the complainant stated that he had hidden the money inside the passbook and at the time of keeping the passbook on the appellant’s table, he had not said that money was kept in the passbook. The appellant had not picked up the pass book in his presence. He said that the C.B.I. officials had asked him to put the money inside the passbook and the appellant had not demanded any money from him and he had told the C.B.I. officials that the appellant would not take the money from him. Upon this the C.B.I. officials had folded the notes, kept it inside the passbook and instructed him to handover the passbook to the appellant or to put it near him. The complainant further stated that the documents written in the English language had not been prepared in his presence and he had been made to put his signatures on blank papers.
13. The complainant also stated that he did not require any no-dues certificate for taking a K.C.C. loan, as the earlier loan had been taken by his father. The C.B.I. officials falsely implicated the appellant through him under pretext of getting him a K.C.C. loan. He could not understand the entire plan of the C.B.I. officials and had he understood it, he would not have taken any action to falsely implicate the appellant.
14. The shadow witness Sri. Vikas Bharti was examined as PW-2 and in his examination-in-chief, he stated that although he had gone inside the Bank with the complainant, the complainant alone had gone inside the appellant’s cabin and he was standing outside, at a distance of about 6 feet from the appellant’s seat. He could not hear the conversation between the complainant and the appellant. However, he reiterated the statement recorded by the Investigating Officer that stated that the complainant took out the money from his upper pocket and passbook from his lower pocket, kept the money in the passbook and handed it to the appellant. The appellant took the passbook in his right hand, opened the passbook and saw something and kept the same in the drawer of his table.
15. During cross-examination, PW-2 stated that some powder was put on the currency notes used in the trap, but no powder was put on any other thing, including the passbook. He said that when the complainant had went inside the appellant’s cabin, there were 5-6 persons present there. He could not hear the conversation between the appellant and the complainant and he did not hear about any demand made by the appellant. 5-6 persons were present when the conversation was taking place between the complainant and the appellant. He also stated that the appellant had not counted the notes by taking the notes in his hand.
16. Dr. Harishchandra Arya, the other independent witness, was examined as PW-3 and he supported the prosecution case and he stated that he had taken out the pass book with the money kept inside it, from the drawer of the table.
17. PW-4 Sri. Awdhesh Kumar Dwivedi was an employee of the Bank and he stated that the loan of the complainant’s father had already been waived and an entry to this effect had already been made in the loan waiver register – document no. D-12 produced before the Court. During cross-examination, PW-4 stated that the list of loan waiver had been put on the notice board of the Bank and this information was also uploaded on the website of the Bank.
18. PW-5 Pankaj Kumar Srivastava was working as Clerk/Cashier in the Bank. He stated that loans taken by 411 farmers from the Bank had been waived. The Head Office had issued an order that the loan waiver certificates be sent to the beneficiaries till 15.10.2008.
19. The trap laying officer Sri. Surendra Rai, Inspector C.B.I. was examined as PW-6 and he supported the prosecution case. However, he had not witnessed the demand and acceptance of bribe by the appellant.
20. PW-7 Sri. Mahesh Singh was the Investigating Officer. He admitted that during investigation, he had found that the shadow witnesses had not heard any demand of money made by the appellant.
21. Sri. Ashok Kumar Singh, Chairman, Sarva U. P. Gramin Bank was the prosecution sanction authority and he has been examined as PW-8.
22. The appellant produced 8 defence witnesses. DW-2 Sri. Pradeep Kumar Tandon, the Branch Manager of the Bank stated that as per the order passed by the regional Manager of the Bank, he had conducted an enquiry to ascertain as to whether the appellant had issued the loan waiver certificates and whether he had taken any bribe for doing so. He had made enquiries from some farmers and 70 farmers had given in writing that no money was demanded from them and they did not give any money.
23. In his statement recorded on 17.01.2013, DW-4 Jagdish Singh stated that earlier he had come to record his statement in the Court on 21.11.2011 in pursuance of a summon issued on 09.11.2011. He was shown his statement recorded by the Investigating Officer under Section 161 Cr.P.C. and he had told the Public Prosecutor that he had not given any such statement to the investigating Officer and the statement is wrong. Upon this, the Public Prosecutor sent him back without examining him as a witness. Nothing significant came out in his cross-examination conducted by the Public Prosecutor.
24. DW-5 Smt. Pushpa Mishra runs a self help group and she holds an account in the Bank. She stated that she and three other ladies of self help groups were present inside the appellant’s cabin at the time of the trap. A person entered the cabin, kept the passbook on the table and he quietly went out in a hurry. Within 2 minutes, 4-5 persons came there and they alleged that the appellant had taken bribe. They forcibly put the passbook inside the appellant’s pocket. The appellant took out the passbook from his pocket and threw it away. When the witness and some other persons present there objected against it, the trap team members started beating the appellant and asked the witness and the other persons to leave, else they would also be implicated. She stated that she had made a written complaint regarding this incident to the Regional manager of the Bank on 23.10.2008 and she filed the same in the Court. She categorically stated that no employee of the Bank had demanded any money from her. Even during her cross-examination, DW-5 specifically stated that the appellant does not take bribe and he has been falsely implicated. She remained consistent in her statement during her cross-examination and no discrepancy came to light.
25. DW-7 Mohd. Shamshad stated that he holds an account with the Bank and he was present in the appellant’s cabin at the time of the trap. A person came there, kept a passbook at the table and left quietly. 5-6 persons entered the cabin after 2 minutes, one of them picked up the pass book and started putting in the appellant’s pocket alleging that he takes bribe. The appellant threw away the passbook and denied the allegation. 5-6 ladies were present there. One of them got up and this witness also objected to the appellant being implicated. The trap team turned every one present there out of the Bank. DW-7 remained consistent even during his cross-examination.
26. The trial Court held that PW-1 – the complainant, has accepted that the complaint is in his hand writing and he has admitted his signatures on it. However, he has stated that the appellant had not demanded or taken any money from him, no money was recovered from the appellant in his presence and he had not seen from where the C.B.I. officials had recovered the money. He said that when he had hidden the money in the passbook and had kept the passbook on the table, he had not told that there was money in the passbook. The shadow witness PW-2 has stated that he could not hear the conversation between the complainant and the appellant. However, PW-2 stated that the appellant took the passbook, opened it and saw it and kept it inside his table drawer along with the money. PW-2 also stated that no powder was put on the passbook. He stated that the appellant did not count the notes by touching the notes by his hands. The trial Court held that the other independent witness PW-3 Dr. Harishchandra Arya stated that the PW-2 had told him that the appellant had taken the passbook with the money kept inside it, from the complainant.
27. The trial Court referred to the statement of DW-5 Smt. Pushpa Singh and held that as this witness has admitted that she did not make any complaint to any administrative or Police officer, her presence at the spot becomes doubtful.
28. The trial Court held that DW-7 Mohd. Shamshad had stated that while the appellant was making entries in his passbook, the CBI team had caught him whereas the last entry in his passbook was made on 10.03.2008 and no entry was made in it on 17.03.2008 from which it appears that DW-7 was not present in the appellant’s cabin at the time of the trap and the trial Court discarded the testimony of PW-7.
29. The trial Court rejected the submission made on behalf of the appellant that no powder was put on the passbook on the ground that if 3 notes of Rs.500/- and 10 notes of Rs.100/- are kept in a passbook measuring 3 inches X 5 inches, the notes would come out naturally and will touch the fingers of the appellant and the solution would change its colour when his fingers are put in it.
30. The trial Court held that the prosecution evidence has proved that the appellant obtained Rs.2,500/- from the complainant. However, the prosecution could not prove the demand of bribe made by the appellant. The trial Court convicted the appellant for the offence under Section 7 of the Prevention of Corruption Act, 1988 and has sentenced him to undergo rigorous imprisonment for a period of three years and to pay Rs.15,000/- as fine. In case of failure to pay fine, the appellant would have to undergo rigorous imprisonment for an additional period of six months. The appellant has been acquitted of the offence under Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and the order of acquittal has not been challenged and it has attained finality. Only conviction and sentence of the appellant under Section 7 of the Prevention of Corruption Act, 1988 has been challenged before this Court.
31. The trial Court had released the appellant on interim bail and thereafter, this Court had also enlarged the appellant on bail.
32. Assailing the validity of the judgment of the trial Court, the learned Counsel for the appellant has submitted that the appellant has not supported the prosecution case and he has turned hostile. The shadow witness stated that he did not hear the appellant demanded any money from the complainant. Therefore, there is no evidence that the appellant had demanded any money from the appellant.
33. The learned Counsel for the appellant has relied upon the judgments in the cases of B. Jayaraj v. State of A.P.: (2014) 13 SCC 55, P. Satyanarayana Murthy v. State of A.P.: (2015) 10 SCC 152, Neeraj Dutta v. State (NCT of Delhi): (2023) 4 SCC 731 and State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede: (2009) 15 SCC 200.
34. The learned Counsel for the respondent – C.B.I. has relied upon the judgments in the cases of Hazari Lal v. State (Delhi Admn.): (1980) 2 SCC 390, M. Narsinga Rao v. State of A.P.: (2001) 1 SCC 691, Neeraj Dutta v. State (NCT of Delhi): (2023) 4 SCC 731, Vinod Kumar v. State of Punjab: (2015) 3 SCC 220 and Vinod Kumar v. State of Punjab: (2015) 3 SCC 220.
35. Before proceeding to understand the law laid down in the cases relied upon by the learned Counsel for the parties, it would be appropriate to have a look at Sections 7 and 13 of the Prevention of Corruption Act, 1988, as the same stood at the relevant time.
36. At the relevant time, Section 7 of the Prevention of Corruption Act, 1988 read as follows: –
“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 three years but which may extend to seven years and shall also be liable to fine.
Explanations….”
37. At the relevant time, Section 13(1)(d) of the Prevention of Corruption Act, 1988 read as follows: –
“13. Criminal misconduct by a public servant.–
(1) A public servant is said to commit the offence of criminal misconduct,–
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(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
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38. Section 20 of the Prevention of Corruption Act, 1988 is also relevant for the present case and at the relevant time, it provided as follows: –
“20. Presumption where public servant accepts gratification other than legal remuneration.–(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
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(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.”
39. In Hazari Lal v. State (Delhi Admn.): (1980) 2 SCC 390: –
“9. … In the facts and circumstances of a particular case a court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance. We are forced to say this because of late we have come across several judgments of Courts of Session and sometimes even of High Courts where reference is made to decisions of this Court on matters of appreciation of evidence and decisions of pure question of fact….
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11. … where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received gratification from some person the court would certainly be entitled to draw the presumption under Section 4(1) of the Prevention of Corruption Act. In our view both the decisions are of no avail to the appellant and as already observed by us conclusions of fact must be drawn on the facts of each case and not on the facts of other cases. In other words there can be no precedents on questions of facts…”
40. In M. Narsinga Rao v. State of A.P.: (2001) 1 SCC 691, it was held that: –
“14. When the sub-section deals with legal presumption it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
15. The word “proof” need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word “proved” in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911) 1 KB 988, observed like this:
“Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.”
41. In B. Jayaraj v. State of A.P.: (2014) 13 SCC 55, the Hon’ble Supreme Court held that: –
“7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779].
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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.”
(Emphasis added)
42. In Vinod Kumar v. State of Punjab: (2015) 3 SCC 220, the Hon’ble Supreme Court held that: –
“45. …the authorities in B. Jayaraj (2014) 13 SCC 55, and M.R. Purushotham (2015) 3 SCC 247, do not lay down as a proposition of law that when the complainant turns hostile and does not support the case of the prosecution, the prosecution cannot prove its case otherwise and the court cannot legitimately draw the presumption under Section 20 of the Act.”
43. In P. Satyanarayana Murthy v. State of A.P.: (2015) 10 SCC 152, it was held that: –
“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.”
44. In Neeraj Dutta v. State (NCT of Delhi): (2023) 4 SCC 731, a Constitution Bench consisting of five Hon’ble Judges of the Supreme Court discussed various precedents on the point and summarized he law as follows: –
“88. What emerges from the aforesaid discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.
88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
88.6. (f) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.
89. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three-Judge Bench decisions of this Court in B. Jayaraj [(2014) 13 SCC 55] and P. Satyanarayana Murthy [(2015) 10 SCC 152] with the three-Judge Bench decision in M. Narsinga Rao [(2001) 1 SCC 691], with regard to the nature and quality of proof necessary to sustain a conviction for the offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases.
90. Accordingly, the question referred for consideration of this Constitution Bench is answered as under:
In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of 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 added)
45. The principles deducible from the aforesaid authorities are as follows:
(i) The demand of illegal gratification is sine qua non to constitute the offence under Section 7 and mere recovery of currency notes cannot constitute the offence under Section 7, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe.
(ii) Even if the complainant turns hostile and does not support the case of the prosecution, if the prosecution proves by such evidence, as would induce a reasonable man to come to a conclusion that the accused has accepted or agreed to accept any gratification, it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc.,
(iii) 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
46. In State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede: (2009) 15 SCC 200, the Hon’ble Supreme Court reiterated that it is a well-settled principle of law that where it is possible to have two views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail.
47. The learned Counsel for the respondent – C.B.I. has relied upon the following observations made in State v. Sanjeev Nanda: (2012) 8 SCC 450: –
“99. Witness turning hostile is a major disturbing factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary consideration or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law, thereby eroding people’s faith in the system.
100. This Court in State of U.P. v. Ramesh Prasad Misra (1996) 10 SCC 360, held that it is equally settled law that the evidence of a hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Supt. of Police: (2004) 3 SCC 767, this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, it may after reading and considering the evidence of the witness as a whole, with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty.
101. We cannot, however, close our eyes to the disturbing fact in the instant case where even the injured witness, who was present on the spot, turned hostile. This Court in Manu Sharma v. State (NCT of Delhi): (2010) 6 SCC 1, and in Zahira Habibullah Sheikh (5) v. State of Gujarat: (2006) 3 CC 372, had highlighted the glaring defects in the system like non-recording of the statements correctly by the police and the retraction of the statements by the prosecution witness due to intimidation, inducement and other methods of manipulation. Courts, however, cannot shut their eyes to the reality. If a witness becomes hostile to subvert the judicial process, the court shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal justice system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 IPC imposes punishment for giving false evidence but is seldom invoked.”
48. When we examine the facts of the present case in light of the law laid down in the above mentioned cases, what comes to light is that the case was initiated on a complaint dated 16.10.2008 submitted by Sri. Gayabudh Singh son of Sri. Surya Lal Singh alleging that the appellant had demanded Rs.3,000/- for issuing a no-dues certificate in respect of a Kisan Credit Card loan of Rs.40,000/- taken by Sri. Surya Lal Singh, which loan had been waived off by the Government. A trap was laid on 17.10.2008. Two independent witnesses – (1) Dr. Harish Chandra Arya and (2) Sri. Vikas Bharti, had accompanied the trap team. The trap team members and witnesses Dr. Harish Chandra Arya had stayed outside the Bank’s branch whereas the complainant Gayabudh Singh and the shadow witnesses Sri. Vikas Bharti had gone inside the Bank. After sometime, Sri. Vikas Bharti came outside and gave a signal, whereupon the trap team and the other independent witnesses Dr. Harish Chandra Arya went inside the Bank and they caught the appellant red handed. At the instruction of the trap laying officer, the independent witnesses Dr. Harish Chandra Arya recovered Rs.2,500/- kept inside a passbook in the drawer of the appellant’s office table.
49. The Investigating Officer recorded statements of the complainant Gayabudh Singh under Section 161 Cr.P.C., who supported the prosecution case. The statement of one Jagdish Singh was recorded on 17.11.2008. He stated that the complainant did not do any work without taking bribe and the people of the area were very happy on the day the appellant was caught.
50. The Investigating Officer recorded statement of the shadow witness Sri. Vikas Bharti on 10.11.2008 and he stated that he had accompanied the complainant inside the bank, but he had not gone inside the cabin of the appellant. 5-6 persons were present inside the appellant’s cabin but they declined to become witnesses in the case. The complainant went near the appellant, he and the appellant talked to each other for about 2 minutes in low voices and the shadow witness could not hear the conversation. Thereafter the complainant took out the money from his upper pocket and passbook from his lower pocket, kept the money in the passbook and handed it to the appellant. The appellant took the passbook in his right hand, opened the passbook and saw something and kept the same in the drawer of his table. Thereafter the appellant gestured the complainant to go out and the shadow witnesses also came out of the bank with the complainant. Upon his giving the signal, the trap team went inside the bank and caught the appellant.
51. The Investigating Officer recorded the statements of the other independent witness Dr. Harishchandra Arya, the trap laying Officer Sri. Surendra Rai, Inspector C.B.I., Sri. Awdhesh Kumar Dwivedi, the Regional Development Manager, Sarva U. P. Gramin Bank and Sri. Pankaj Kumar Srivastava, a clerk working in the Bank.
52. The complainant Gayabudh Singh was examined as PW-1. He stated that he had met the appellant for waiver of the old loan and taking a new loan. The appellant had told him that the old loan had been waived off but he had not received any order for granting a new loan. Some persons outside the Bank had told him that perhaps giving something might help. Some persons sitting at a hotel had given him a phone number and said that the complainant should go to him at Lucknow and he would get a K.C.C. very fast. The complainant categorically stated that he did not meet the appellant after waiver of the loan for getting a no-dues certificate. He stated that he had called on the phone number that was given to him, whereupon he was called to C.B.I. office at Lucknow, he had written the complaint as per the directions of C.B.I. officials with the object of getting a KCC loan. C.B.I. Inspector Sri. Surendra Rai had asked him to arrange the money. The complainant did not did not support the prosecution case and he was declared hostile at the request of the prosecution.
53. During his cross-examination by the Public Prosecution, the complaint stated that he had not written the complaint by himself, he was made to write the complaint as per the dictation given to him. The complainant stated that statement recorded under Section 161 Cr.P.C. had not been given by him. The complainant stated that he had given the passbook with the money kept in it to the appellant in presence of a person from the C.B.I. and he had said that as his loan had been waived, an endorsement of nil dues be made on it. He had kept the pass book on the table of the appellant. He denied that the appellant had kept the pass book in the drawer of his table. He said that he had signed the recovery memo under pressure of the C.B.I. team. The appellant categorically denied that the appellant had demanded any bribe from him.
54. During the cross-examination conducted by the defence’ Counsel, the complainant stated that he had hidden the money inside the passbook and at the time of keeping the passbook on the appellant’s table, he had not said that any money was kept in the passbook. The appellant had not picked up the pass book in his presence. He said that the C.B.I. officials had asked him to put the money inside the passbook and the appellant had not demanded any money from him. He had told the C.B.I. officials that the appellant would not take the money from him. Upon this the C.B.I. officials had folded the notes, kept it inside the passbook and instructed him to handover the passbook to the appellant or to put it near him.
55. The complainant also stated that he did not require any no-dues certificate for taking a K.C.C. loan, as the earlier loan had been taken by his father. The C.B.I. officials falsely implicated the appellant through him under pretext of getting him a K.C.C. loan. He could not understand the entire plan of the C.B.I. officials and had he understood it, he would not have taken any action to falsely implicate the appellant.
56. It is true that merely because the complainant has turned hostile, his entire statement cannot be discarded but a reading of the entire statement of the complainant does not make out anything which may support the prosecution case. The complainant has stated clearly that he did not need any no-objection certificate for taking a loan, the appellant had not demanded any money from him, the C.B.I. officials had folded the notes and kept the same inside the passbook and he had kept the passbook on the appellant’s table. He had not handed over the money or the passbook to the appellant. The appellant has categorically stated that C.B.I. has falsely implicated the appellant.
57. The shadow witness Sri. Vikas Bharti (PW-2) stated that although he had gone inside the Bank with the complainant, the complainant alone had gone inside the appellant’s cabin. He was standing outside and he could not hear the conversation between the complainant and the appellant. PW-2 did not hear whether the appellant had demanded any money. He stated that the complainant had kept the money in the passbook and handed it to the appellant. The appellant took the passbook, opened it, saw something and kept the same in the drawer of his table. He stated that the appellant had not counted the notes by taking the notes in his hand. PW-2 also stated that the chemical powder was put on the currency notes used in the trap, but no powder was put on any other thing, including the passbook.
58. PW-2 said that when the complainant had gone inside the appellant’s cabin, there were 5-6 persons present there and the conversation between the complainant and the appellant took place in presence of those persons.
59. CBI has not examined any of those 5-6 persons who were present at the time of the trap.
60. DW-5 Smt. Pushpa Mishra claimed to be one of those 5-6 persons. She stated that she and three other ladies of some self help groups were present inside the appellant’s cabin at the time of the trap. A person entered the cabin, kept the passbook on the table and he quietly went out in a hurry. Within 2 minutes, 4-5 persons came there and they alleged that the appellant had taken bribe. They forcibly put the passbook inside the appellant’s pocket. The appellant took out the passbook from his pocket and threw it away. When the witness and some other persons present there objected against it, the trap team members started beating the appellant and asked PW-5 and the other persons present there to leave, else they would also be implicated. She stated that she had made a written complaint regarding this incident to the Regional Manager of the Bank on 23.10.2008 and she filed the same in the Court. She categorically stated that no employee of the Bank had demanded any money from her. Even during her cross-examination, DW-5 specifically stated that the appellant does not take bribe and he has been falsely implicated. She remained consistent in her statement during her cross-examination and no discrepancy came to light. However, the trial Court discarded the testimony of DW-5 she admitted that she had not made any complaint to any administrative or Police officer, which makes her presence at the spot doubtful.
61. It is basic principle of criminal jurisprudence that the prosecution has to establish the guilt of an accused person. The testimony of PW-1 is entirely against the prosecution. PW-2 – the shadow witness, also said that he did not hear the conversation between the complainant and the appellant. There was no other person who had witnessed the alleged demand and acceptance of bribe. DW-5 has categorically stated that the appellant had neither demanded nor accepted the bribe and that he has been falsely implicated.
62. The Investigating Officer had recorded the statement of one Jagdish Singh, who stated that the complainant did not do any work without taking bribe and the people of the area were very happy on the day the appellant was caught. However, the prosecution did not produce Jagdish Singh as its witness.
63. Section 114 of the Evidence Act provided that “The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations (g) appended to Section 114 provides that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Therefore, non-examination of Jagdish Singh as a prosecution witness would raise an adverse presumption against the case set up by the prosecution.
64. Although Jagdish Singh was not produced by the prosecution, he was examined as DW-4. He stated that earlier he had come to record his statement in the Court on 21.11.2011 in pursuance of summons issued on 09.11.2011. He was shown his statement recorded by the Investigating Officer under Section 161 Cr.P.C. and he had told the Public Prosecutor that he had not given any such statement to the investigating Officer and the statement is wrong. Upon this, the Public Prosecutor sent him back without examining him as a witness. Nothing significant came out in his cross-examination conducted by the Public Prosecutor.
65. The aforesaid statement of Jagdish Singh proves that the Investigating Officer has wrongly recorded statements against the appellant, which corroborates supports the statement of PW-4 that the CBI has falsely implicated the appellant.
66. Although the trial Court has gone into the question of non-dispatch of no-dues certificate, but when the prosecution has failed to prove the demand and acceptance of bribe, which is a sine-qua-non for proving the charge of commission of offence under Section 7 of the Prevention of Corruption Act, there is no need to go into that question.
67. In view of the foregoing discussion, I am of the considered view that the prosecution has failed to prove the guilt of the appellant. The impugned order passed by the trial Court convicting and sentencing the appellant for the offence under Section 7 of the Prevention Of Corruption Act is unsustainable and the same is liable to be set aside.
68. Accordingly, the appeal is allowed. The judgment and order dated 07.03.2013 passed by the learned Special Judge, C.B.I., Court No. 1, Lucknow in Criminal Case No. 2 of 2008 arising out of RC No. 0062008A0016/2008 under Sections 7 and Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988, Police Station C.B.I./A.C.B., Lucknow, whereby the trial Court has convicted the appellant for the offence under Section 7 of the Prevention of Corruption Act, 1988 and has sentenced him to undergo rigorous imprisonment for a period of three years and to pay Rs.15,000/- as fine, is set aside. The amount of fine paid by the appellant shall be refunded to him within a period of 30 days from the date of this judgment.
69. The parties shall bear their own costs of litigation.
(Subhash Vidyarthi J.)
Order Date: 01.07.2025
Pradeep/-