Karnataka High Court
Smt. Usha G vs State By Lokayukta Police on 2 June, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 07.04.2025
Pronounced on : 02.06.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.26705 OF 2024 (GM - RES)
BETWEEN:
SMT. USHA G.,
W/O K.S.VEERABHADRASWAMY
AGED ABOUT 46 YEARS
OCCUPATION ASSISTANT EXECUTIVE ENGINEER,
CHANDAPURA BESCOM DIVISION
RESIDING AT NO. 423 EWS 2ND STAGE
3RD MAIN, KHB COLONY,
BASAVESHWARNAGARA,
BENGALURU NORTH
BENGALURU - 560 079.
SHOWN IN THE FIR AS
SRI. USHA D.,
ASSISTANT EXECUTIVE ENGINEER
BESCOM CHANDAPURA DIVISION,
ANEKAL TALUK
BENGALURU RURAL.
... PETITIONER
(BY SRI SANDESH J.CHOUTA, SR.ADVOCATE A/W
SMT.SANYA MALLI, ADVOCATE)
2
AND:
1. STATE BY LOKAYUKTA POLICE
BANGALORE CITY POLICE STATION
REPRESENTED BY
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT BUILDING
BENGALURU - 560 001.
2. SRI. ANANTHAMURTHY K.V.,
AGED ABOUT 49 YEARS,
CLASS I CONTRACTOR, BESCOM
M/S. DELTA ENGINEERS AND CONSULTANTS,
NO. 1743/12, 1ST D MAIN ROAD,
2ND PHASE, RAJAJINAGAR
BENGALURU - 560 010.
... RESPONDENTS
(BY SRI B.B.PATIL, ADVOCATE FOR R-1;
SRI GIRISH KODGI, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 528 OF
BHARATIYA NAGARIK SURAKSHA SANHITA, PRAYING TO
QUASH/SET ASIDE THE FIR IN CRIME NO. 06/2024 DTD
06.07.2024 REGISTERED BY THE R-1 HERETO PRODUCED AS
ANNX-A AND ALL SUBSEQUENT CRIMINAL PROCEEDINGS QUA THE
PETITIONER PENDING ON THE FILE OF THE IX ADDL. DISTRICT
AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, AT
BENGALURU AS AGAINST THE PETITIONER FOR OFFENCES
PUNISHABLE U/S 7(a) OF THE PREVENTION OF CORRUPTION ACT
1988.
3
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 07.04.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.1 is before this Court calling in
question registration of crime in Crime No.6 of 2024 registered for
offence punishable under Section 7(a) of the Prevention of
Corruption Act, 1988 ('hereinafter referred to as 'the Act' for short).
2. Facts in brief, borne out from the pleadings, are as
follows:-
The petitioner is a public servant working as Assistant
Executive Engineer, Chandapura BESCOM Division. The 2nd
respondent is the complainant, a Class-I Contractor and Proprietor
of M/s Delta Engineers and Consultants. The complainant is said to
have agreed to conduct some electrical work for his customer one
M/s Praga Capital situated in Plot No.53C, Bommasandra, Anekal
4
Taluk. Accordingly, the work was completed and the petitioner was
requested to conduct inspection of meters in the said plot and
submit his report for the purpose of approval of power supply. On
the evening of 04-07-2024 at around 4.30 p.m. the petitioner
completes the inspection of the property but did not submit the
inspection report on the same day. The allegation is that the
petitioner had demanded an illegal gratification of ₹5,000/- for the
purpose of completion of the report and ₹1,000/- for her driver.
Thereafter, it is alleged that the complainant paid an amount of
₹1,000/- in cash to the petitioner for the driver and transferred
₹5,000/- to the petitioner through Google pay. The complainant is
said to have recorded the demand of illegal gratification on his
mobile phone and is said to have transferred the same thereafter to
a compact disc. On the said alleged incident on 04-07-2024, a
complaint comes to be filed on 05-07-2024 which comes to be
registered in Crime No.6 of 2024 for offence punishable under
Section 7(a) of the Act. Registration of crime has driven the
petitioner to this Court in the subject petition.
5
3. Heard Sri Sandesh J. Chouta, learned senior counsel
appearing for the petitioner, Sri B.B.Patil, learned counsel
appearing for respondent No.1 and Sri Girish Kodgi, learned counsel
appearing for respondent No.2.
4. The learned senior counsel appearing for the petitioner
would submit that there is no proof of demand and acceptance
which is sine qua non for constituting an offence under Section 7 of
the Act. Proof of demand should be at the spot or time of the trap.
This is most important ingredient to constitute an offence under
Section 7 of the Act. There is no post-paid concept under Section 7
and there cannot be an offence under Section 7(a) when the trap
has failed. Elaborating these submissions, the learned senior
counsel would submit that the petitioner had completed her job of
inspecting the meter. Subsequent to that no report was to be
prepared by the petitioner to be handed over to the complainant.
She had a duty to submit a report to her superior and not the
complainant which she has done on the very next day. Trap
mahazar is drawn on 06-07-2024. There is no trap laid. The
allegation in the complaint is that the petitioner has demanded
6
₹5,000/- for herself and ₹1,000/- for the Driver. The learned senior
counsel would submit that it is a case of failed trap at best, as
nothing that is necessary under Section 7 is present in the case at
hand.
5. Per contra, the learned counsel Sri B.B.Patil representing
the 1st respondent/Lokayukta would vehemently refute the
submissions in contending that the submissions so made by the
learned senior counsel would all be in the realm of evidence. If the
foundational facts are present, the Court should not exercise its
inherent power under Article 226 of the Constitution of India or
under Section 482 of the Cr.P.C., to quash the proceedings,
particularly in cases where they are at the stage of investigation. It
is his submission that mere demand itself is sufficient to constitute
an offence punishable under Section 7 of the Act and a mere
attempt to obtain illegal gratification is sufficient to constitute an
offence under the Act. He would place reliance upon Section 20 of
the Act to contend that there is legal presumption of demand and
acceptance and the petition should not be considered at the stage
of investigation, as at best it can be rebuttable presumption.
7
6. The learned counsel for the 2nd respondent/complainant
would also toe the lines of the learned counsel for the 1st
respondent Sri B.B.Patil in contending that the matter is at the
stage of investigation and this Court should not interfere by
exercising its jurisdiction conferred under Article 226 of the
Constitution of India or under Section 482 of the Cr.P.C. The
learned senior counsel for the petitioner and the learned counsel for
respondents 1 and 2 place reliance upon several judgments of the
Apex Court and that of this Court, all of them would bear
consideration qua their relevance in the course of the order.
7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated facts are borne out from the pleadings,
the complaint or the trap mahazar. Therefore, they would not be
necessary to be reiterated again. The entire issue has sprung from
the complaint. The complaint reads as follows:
"ಇಂದ,
8
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9
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The complaint narrates that the petitioner was entrusted with the
job of conducting inspection of the meter in the building in which
the complainant had done electrical work. The allegation is that the
petitioner had demanded ₹5,000/- towards the inspection report
being given to the complainant and ₹1,000/- in cash was handed
10
over to the driver of the petitioner. The conversation is all alleged
to have been recorded in his mobile and is transferred to a private
device and handed over to the Lokayukta Police. The Lokayukta
Police does not draw up a pre-trap mahazar; does not lay a trap
and the petitioner is not caught red-handed. There is very feign of
allegation of admission and acceptance. In such circumstance, it
becomes necessary to notice the law as laid down by the Apex
Court interpreting Section 7(a), both pre and post amendment to
the Act.
9. The provisions of the Act that are alleged are as follows:
"7. Offence relating to public servant being
bribed.--Any public servant who,--
(a) obtains or accepts or attempts to obtain from any
person, an undue advantage, with the intention to
perform or cause performance of public duty
improperly or dishonestly or to forbear or cause
forbearance to perform such duty either by himself
or by another public servant; or
(b) obtains or accepts or attempts to obtain, an undue
advantage from any person as a reward for the improper
or dishonest performance of a public duty or for
forbearing to perform such duty either by himself or
another public servant; or
(c) performs or induces another public servant to perform
improperly or dishonestly a public duty or to forbear
11
performance of such duty in anticipation of or in
consequence of accepting an undue advantage from any
person,
shall be punishable with imprisonment for a term which shall not
be less than three years but which may extend to seven years
and shall also be liable to fine.
Explanation 1.--For the purpose of this section, the
obtaining, accepting, or the attempting to obtain an undue
advantage shall itself constitute an offence even if the
performance of a public duty by public servant, is not or has not
been improper.
Illustration.--A public servant, 'S' asks a person, 'P' to
give him an amount of five thousand rupees to process his
routine ration card application on time. 'S' is guilty of an offence
under this section.
Explanation 2.--For the purpose of this section,--
(i) the expressions "obtains" or "accepts" or "attempts to
obtain" shall cover cases where a person being a public
servant, obtains or "accepts" or attempts to obtain, any
undue advantage for himself or for another person, by
abusing his position as a public servant or by using his
personal influence over another public servant; or by any
other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a public
servant obtains or accepts, or attempts to obtain the
undue advantage directly or through a third party.]
7-A. Taking undue advantage to influence public
servant by corrupt or illegal means or by exercise of
personal influence.--Whoever accepts or obtains or
attempts to obtain from another person for himself or for
any other person any undue advantage as a motive or
reward to induce a public servant, by corrupt or illegal
means or by exercise of his personal influence to perform
or to cause performance of a public duty improperly or
dishonestly or to forbear or to cause to forbear such
public duty by such public servant or by another public
12
servant, shall be punishable with imprisonment for a
term which shall not be less than three years but which
may extend to seven years and shall also be liable to fine.
... ... ...
12. Punishment for abetment of offences.--Whoever
abets any offence punishable under this Act, whether or
not that offence is committed in consequence of that
abetment, shall be punishable with imprisonment for a
term which shall be not less than three years, but which
may extend to seven years and shall also be liable to fine.
13. Criminal misconduct by a public servant.--(1) A
public servant is said to commit the offence of criminal
misconduct,--
(a) if he dishonestly or fraudulently misappropriates or
otherwise converts for his own use any property
entrusted to him or any property under his control as a
public servant or allows any other person so to do; or
(b) if he intentionally enriches himself illicitly during the
period of his office.
Explanation 1.--A person shall be presumed to have
intentionally enriched himself illicitly if he or any person on his
behalf, is in possession of or has, at any time during the period
of his office, been in possession of pecuniary resources or
property disproportionate to his known sources of income which
the public servant cannot satisfactorily account for.
Explanation 2.--The expression "known sources of
income" means income received from any lawful sources.
(2) Any public servant who commits criminal
misconduct shall be punishable with imprisonment for a
term which shall be not less than four years but which
may extend to ten years and shall also be liable to fine."
(Emphasis supplied)
13
Section 7 directs that any public servant who accepts or attempts to
obtain from any person undue advantage with an intention to
perform or cause performance of public duty or to forbear such
performance either by himself or by another public servant is said
to have committed the offence of bribe. Therefore the soul of
Section 7(a) is demand and acceptance for the performance of
public duty or forbearance of such performance. Section 7A deals
with taking undue advantage to influence public servant by corrupt
or illegal means or by exercise of personal influence. The section
mandates that whoever accepts or obtains or attempts to obtain
from another person for himself or for any other person undue
advantage for performance of a public duty or its forbearance, is
amenable for punishment. Here again it should be demand and
acceptance by himself or through some other person. Section 12
deals with abatement of offence which cannot be applicable to the
petitioner. Section 13(2) deals with punishment for criminal
misconduct. Criminal misconduct is defined in Section 13(1)(a)
that whoever dishonestly or fraudulently misappropriates or
otherwise converts for his own use any property entrusted to him
or enriches himself illicitly during the period of his office. These are
14
the offences alleged against the petitioner. Since the soul is Section
7 either under the un-amended Act or under the amended Act, the
interpretation of Section 7(a) or Section 7A by the Apex Court qua
un-amended Act or the amended Act is germane to be noticed.
INTERPRETATION UNDER THE UN-AMENDED ACT:
10. The Apex Court in the case of B.JAYARAJ v. STATE OF
ANDHRA PRADESH1 interprets Section 7 of the Act and holds as
follows:
"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 :
(2013) 2 SCC (Cri) 89] and C.M. Girish
Babu v. CBI [(2009) 3 SCC 779: (2009) 2 SCC (Cri) 1]."
(Emphasis supplied)
In the case of N.VIJAYAKUMAR v. STATE OF TAMILNADU2 the
Apex Court holds as follows:
1
(2014) 13 SCC 55
15
"26. 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 C.M. Girish Babu v. CBI [C.M. Girish
Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1]
and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of
A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] 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 the 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. It is also fairly well settled that initial
presumption of innocence in the criminal jurisprudence gets
doubled by acquittal recorded by the trial court.
27. The relevant paras 7, 8 and 9 of the judgment
in B. Jayaraj [B. Jayaraj v. State of A.P., (2014) 13 SCC
55 : (2014) 5 SCC (Cri) 543] read as under: (SCC pp. 58-
59)
"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. [C.M.
Sharma v. State of A.P., (2010) 15 SCC 1 :
(2013) 2 SCC (Cri) 89] and C.M. Girish
2
(2021) 3 SCC 687
16
Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3
SCC 779 : (2009) 2 SCC (Cri) 1] .
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
17
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."
The abovesaid view taken by this Court fully supports the case
of the appellant. In view of the contradictions noticed by us
above in the depositions of key witnesses examined on behalf of
the prosecution, we are of the view that the demand for and
acceptance of bribe amount and cellphone by the appellant, is
not proved beyond reasonable doubt. Having regard to such
evidence on record the acquittal recorded by the trial court is a
"possible view" as such the judgment [State of T.N. v. N.
Vijayakumar, 2020 SCC OnLine Mad 7098] of the High Court is
fit to be set aside. Before recording conviction under the
provisions of the Prevention of Corruption Act, the courts have
to take utmost care in scanning the evidence. Once conviction is
recorded under the provisions of the Prevention of Corruption
Act, it casts a social stigma on the person in the society apart
from serious consequences on the service rendered. At the
same time it is also to be noted that whether the view taken by
the trial court is a possible view or not, there cannot be any
definite proposition and each case has to be judged on its own
merits, having regard to evidence on record."
(Emphasis supplied)
The Apex Court, later, in the case of K.SHANTHAMMA v. STATE
OF TELANGANA3 has held as follows:
"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
3
(2022) 4 SCC 574
18
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. [P.
Satyanarayana Murthy v. State of A.P., (2015) 10 SCC 152 :
(2016) 1 SCC (Cri) 11] , this Court has summarised the well-
settled law on the subject in para 23 which reads thus : (SCC p.
159)
"23. The proof of demand of illegal gratification,
thus, is the gravamen of the offence under Sections 7
and 13(1)(d)(i) and (ii) of the Act and in absence
thereof, unmistakably the charge therefor, would fail.
Mere acceptance of any amount allegedly by way of
illegal gratification or recovery thereof, dehors the
proof of demand, ipso facto, would thus not be
sufficient to bring home the charge under these two
sections of the Act. As a corollary, failure of the
prosecution to prove the demand for illegal
gratification would be fatal and mere recovery of the
amount from the person accused of the offence under
Section 7 or 13 of the Act would not entail his
conviction thereunder."
(emphasis supplied)
12. The prosecution's case is that the appellant had kept
pending the return of commercial tax filed by the said Society
for the year 1996-97. The appellant had issued a notice dated
14-2-2000 to the said Society calling upon the said Society to
produce the record. Accordingly, the necessary books were
produced by the said Society. The case made out by PW 1 is
that when he repeatedly visited the office of the appellant in
February 2020, the demand of Rs 3000 by way of illegal
gratification was made by the appellant for passing the
assessment order. However, PW 1, in his cross-examination,
accepted that the notice dated 26-2-2000 issued by the
appellant was received by the said Society on 15-3-2000 in
which it was mentioned that after verification of the books of
accounts of the said Society, exemption from payment of
commercial tax as claimed by the said Society was allowed. PW
1 accepted that it was stated in the said notice that there was
no necessity for the said Society to pay any commercial tax for
Assessment Year 1996-97.
19
13. According to the case of PW 1, on 23-3-2000, he
visited the appellant's office to request her to issue final
assessment order. According to his case, at that time, initially,
the appellant reiterated her demand of Rs 3000. But she scaled
it down to Rs 2000. Admittedly, on 15-3-2000, the said Society
was served with a notice informing the said Society that an
exemption has been granted from payment of commercial tax to
the said Society. Therefore, the said Society was not liable to
pay any tax for the year 1996-97. The issue of the final
assessment order was only a procedural formality. Therefore,
the prosecution's case about the demand of bribe made on 23-
3-2000 by the appellant appears to be highly doubtful.
14. PW 1 described how the trap was laid. In the pre-trap
mediator report, it has been recorded that LW 8, Shri R. Hari
Kishan, was to accompany PW 1 -- complainant at the time of
offering the bribe. PW 7 Shri P.V.S.S.P. Raju deposed that PW 8
Shri U.V.S. Raju, the Deputy Superintendent of Police, ACB, had
instructed LW 8 to accompany PW 1 -- complainant inside the
chamber of the appellant. PW 8 has accepted this fact by stating
in the examination-in-chief that LW 8 was asked to accompany
PW 1 and observe what transpires between the appellant and
PW 1. PW 8, in his evidence, accepted that only PW 1 entered
the chamber of the appellant and LW 8 waited outside the
chamber. Even PW 7 admitted in the cross-examination that
when PW 1 entered the appellant's chamber, LW 8 remained
outside in the corridor. Thus, LW 8 was supposed to be an
independent witness accompanying PW 1. In breach of the
directions issued to him by PW 8, he did not accompany PW 1
inside the chamber of the appellant, and he waited outside the
chamber in the corridor. The prosecution offered no explanation
why LW 8 did not accompany PW 1 inside the chamber of the
appellant at the time of the trap.
15. Therefore, PW 1 is the only witness to the alleged
demand and acceptance. According to PW 1, firstly, the demand
was made of Rs 3000 by the appellant on 24-2-2000.
Thereafter, continuously for three days, she reiterated the
demand when he visited the appellant's office. Lastly, the
appellant made the demand on 29-2-2000 and 23-3-2000. On
this aspect, he was cross-examined in detail by the learned
20
Senior Counsel appearing for the appellant. His version about
the demand and acceptance is relevant which reads thus:
"In the vicinity of office of AO the jeep, in which
we went there was stopped and I was asked to go into
the office of AO and the trap party took vantage
positions. Accordingly, I went inside the office of AO. I
wished AO. At that time apart from AO some other
person was found in the office room of AO and he was
talking to the AO. AO offered me a chair. After
discussion with the AO the said other person left the
room of AO. I informed AO that I brought the bribe
amount as demanded by her and also asked her to issue
the final assessment orders. Then I took the said tainted
currency notes from my shirt pocket and I was about to
give the same to the AO and on which instead of taking
the same amount directly by her with her hands she
took out a diary from her table drawer, opened the
diary and asked me to keep the said amount in the
diary. Accordingly, I kept the amount in the said diary.
She closed the said diary and again kept the same in
her table drawer and locked the drawer and kept the
keys in her hand bag which was hanging to her seat.
She pressed the calling bell and a lady attender came
into the room of AO, then she instructed the lady
attender to call ACTO concerned to her along with the
society records concerned.
Accordingly, ACTO came to AO along with record. After going
through the ledger and cash book, etc. AO signed on the last
page of the said ledger and cash book mentioning 26-2-2000
below her signature in the said register though she signed on
27-3-2000 in my presence. AO directed her attender to affix
official rubber stamp below her signature in the ledger and cash
book and accordingly attender affixed the same. AO also signed
on the office note of final assessment orders at that time.
Thereafter, I collected the general ledger and cash book from
the attender after affixing the said rubber stamp thereon and
came out of the office of AO and relayed the pre-arranged signal
to the trap party."
(emphasis supplied)
21
16. Thus, PW 1 did not state that the appellant reiterated
her demand at the time of trap. His version is that on his own,
he told her that he had brought the amount. What is material is
the cross-examination on this aspect. In the cross-examination,
PW 1 accepted that his version regarding the demand made by
the appellant on various dates was an improvement. The
relevant part of the cross-examination of the appellant reads
thus:
"I did not state to ACB Inspector in Section 161
CrPC statement that on the evening of 24-2-2000 I met
the AO and that she demanded the bribe. I did not
mention in Ext. P-3 complaint that continuously for 3
days after 24-2-2000 I met the AO and the AO reiterated
her demand. I did not mention in Ext. P-3 complaint that
on 29-2-2000 I approached the AO and the AO demanded
bribe of Rs 3000 and that unless I pay the said bribe
amount she will not issue final assessment orders. I did
not state in my Section 164 statement before the
Magistrate that 13-3-2000 to 16-3-2000 I was on leave
and from 1-3-2000 to 12-3-2000, I was engaged in
recovering the dues of the society. It is not true to
suggest that I did not meet the AO continuously 3 days
i.e. on 25-2-2000, 26-2-2000 and 27-2-2000 and that
27-2-2000 is Sunday. It is not true to suggest that I did
not meet the AO in the evening of 24-2-2000 and that AO
did not demand any money from me. I did not state in
my Section 161 CrPC statement to Inspector of ACB that
before I left the office of DSP on the date of trap I made a
phone call enquiring about the availability of AO and the
AO was in the office and informed me that she should be
available in the office from 6.00 to 7.00 p.m. on that day
so also in my Section 164 CrPC. I made such a phone call
from the office of the DSP, ACB. I do not remember as to
from which phone number I made phone call on that day.
I cannot describe office telephone number of the AO. It is
not true to suggest that I did not make any such phone
call to AO and that she did not give any such reply to
me. I did not state to ACB Inspector in my Section 161
CrPC statement or to the Magistrate in my Section 164
CrPC statement that I went inside the office of AO and I
wished AO and at that time apart from AO some other
person was found in the office room of AO and that he
22
was talking to the AO and that the AO offered me a chair
and that after discussion with the AO the said person left
the room of AO and then I informed the AO that I brought
the bribe amount. I did not state that said aspects to DSP
during the post trap proceedings also."
(emphasis supplied)
17. Thus, the version of PW 1 in his examination-in-chief
about the demand made by the appellant from time to time is
an improvement. As stated earlier, LW 8 did not enter the
appellant's chamber at the time of trap. There is no other
evidence of the alleged demand. Thus, the evidence of PW 1
about the demand for bribe by the appellant is not at all
reliable. Hence, we conclude that the demand made by the
appellant has not been conclusively proved.
18. PW 2, Shri B.D.V. Ramakrishna had no personal
knowledge about the demand. However, he accepted that on
15-3-2000, the said Society received a communication
informing that the said Society need not pay any tax for the
year 1996-97. PW 3 Shri L. Madhusudhan was working as
Godown Incharge with the said Society. He stated that on 15-3-
2000, when he visited the appellant's office, ACTO served the
original notice dated 26-2-2000 in which it was mentioned that
the Society was not liable to pay any tax. It is his version that
when he met the appellant on the same day, she enquired
whether he had brought the demanded amount of Rs 3000.
However, PW 3 did not state that the appellant demanded the
said amount for granting any favour to the said society.
19. PW 4 Ahmed Moinuddin was ACTO at the relevant
time. He deposed that on 27-3-2000, the appellant instructed
him to prepare the final assessment order, which was kept
ready in the morning. He stated that he was called at 6 p.m. to
the chamber of the appellant along with books of the said
Society. At that time, PW 1 was sitting there. He stated that the
appellant subscribed her signature on a Register of the said
Society and put the date as 26-2-2000 below it. He was not a
witness to the alleged demand. However, in the cross-
examination, he admitted that the appellant had served a memo
dated 21-3-2000 to him alleging that he was careless in
performing his duties."
23
The afore-quoted judgments were rendered interpreting Section 7
as it stood prior to amendment. The Apex Court holds that demand
and acceptance are sine qua non for an offence under Section 7 of
the Act.
JUDGMENTS POST AMENDMENT:
11. The Apex Court has further interpreted Section 7(a) post
amendment in the case of NEERAJ DUTTA v. STATE (GOVT. OF
N.C.T. OF DELHI4 and holds as follows:
"8. Before we analyze the evidence, we must note that
we are dealing with Sections 7 and 13 of the PC Act as they
stood prior to the amendment made by the Act 16 of 2018 with
effect from 26th July 2018. We are referring to Sections 7 and 13
as they stood on the date of commission of the offence. Section
7, as existed at the relevant time, reads thus:
"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
4
2023 SCC OnLine SC 280
24
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.-
(a) "Expecting to be a public servant"- If a person
not expecting to be in office obtains a
gratification by deceiving others into a belief
that he is about to be in office, and that he will
then serve them, he may be guilty of cheating,
but he is not guilty of the offence defined in this
section.
(b) "Gratification". The word "gratification" is not
restricted to pecuniary gratifications or to
gratifications estimable in money.
(c) "Legal remuneration"- The words "legal
remuneration" are not restricted to
remuneration which a public servant can
lawfully demand, but include all remuneration
which he is permitted by the Government or the
organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who
receives a gratification as a motive or reward
for doing what he does not intend or is not in a
position to do, or has not done, comes within
this expression.
(e) Where a public servant induces a person
erroneously to believe that his influence with
the Government has obtained a title for that
person and thus induces that person to give the
public servant, money or any other gratification
25
as a reward for this service, the public servant
has committed an offence under this section."
9. Section 13(1)(d), as existed at the relevant time,
reads thus:
"13. Criminal misconduct by a public
servant.--
(1) A public servant is said to commit the offence of
criminal misconduct,-
(a) ....................................
(b) ....................................
(c) ....................................
(d) if he,-
(i) by corrupt or illegal means, obtains for himself or
for any other person any valuable thing or
pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains
for himself or for any other person any valuable
thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for
any person any valuable thing or pecuniary
advantage without any public interest; or
(e) ........................................"
10. The demand for gratification and the acceptance
thereof are sine qua non for the offence punishable under
Section 7 of the PC Act.
11. The Constitution Bench4 was called upon to decide
the question which we have quoted earlier. In paragraph 74, the
conclusions of the Constitution have been summarised, which
read thus:
"74. What emerges from the aforesaid discussion is
summarised as under:
26
(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.
(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.
(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.
(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.
27
(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 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.
(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.
(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.
28
(g) In so far as Section 7 of the Act is concerned,
on the proof of the facts in issue, Section 20
mandates the court to raise a presumption
that the illegal gratification was for the
purpose of a motive or reward as mentioned
in the said Section. The said presumption has to
be raised by the court as a legal presumption or a
presumption in law. Of course, the said
presumption is also subject to rebuttal. Section 20
does not apply to Section 13(1)(d)(i) and (ii) of the
Act.
(h) We clarify that the presumption in law under
Section 20 of the Act is distinct from presumption
of fact referred to above in point
(e) as the former is a mandatory presumption while
the latter is discretionary in nature."
(emphasis added)
12. The referred question was answered in paragraph 76
of the aforesaid judgment, which reads thus:
"76. 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/ document-tary
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)
13. 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
29
mentioned in Section 7 (as it existed prior to the amendment of
2018). In fact, the Constitution Bench has approved two
decisions by the benches of three Hon'ble Judges in the cases
of B. Jayaraj1 and P. Satyanarayana Murthy2. There is another
decision of a three Judges' bench in the case of N.
Vijayakumar v. State of Tamil Nadu5, which follows the view
taken in the cases of B. Jayaraj1 and P. Satyanarayana Murthy2.
In paragraph 9 of the decision in the case of B. Jayaraj1, this
Court has dealt with the presumption under Section 20 of the PC
Act. In paragraph 9, this Court held thus:
"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)
14. The presumption under Section 20 can be invoked
only when the two basic facts required to be proved under
Section 7, are proved. The said two basic facts are 'demand' and
'acceptance' of gratification. The presumption under Section 20
is that unless the contrary is proved, the acceptance of
gratification shall be presumed to be for a motive or reward, as
contemplated by Section 7. It means that once the basic facts of
the demand of illegal gratification and acceptance thereof are
proved, unless the contrary are proved, the Court will have to
presume that the gratification was demanded and accepted as a
motive or reward as contemplated by Section 7. However, this
presumption is rebuttable. Even on the basis of the
preponderance of probability, the accused can rebut the
presumption.
30
15. In the case of N. Vijayakumar5, another bench of
three Hon'ble Judges dealt with the issue of presumption under
Section 20 and the degree of proof required to establish the
offences punishable under Section 7 and clauses (i) and (ii)
Section 13(1)(d) read with Section 13(2) of PC Act. In
paragraph 26, the bench held thus:
"26. 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 C.M. Girish Babu v. CBI [C.M.
Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC
(Cri) 1] and in B. Jayaraj v. State of A.P. [B.
Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5
SCC (Cri) 543] 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 the 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. It is also fairly well settled that initial
presumption of innocence in the criminal jurisprudence
gets doubled by acquittal recorded by the trial court."
(emphasis added)
16. Thus, the demand for gratification and its acceptance
must be proved beyond a reasonable doubt.
17. Section 7, as existed prior to 26th July 2018, was
different from the present Section 7. The unamended Section 7
which is applicable in the present case, specifically refers to
"any gratification". The substituted Section 7 does not use the
word "gratification", but it uses a wider term "undue
advantage". When the allegation is of demand of gratification
31
and acceptance thereof by the accused, it must be as a motive
or reward for doing or forbearing to do any official act. The fact
that the demand and acceptance of gratification were for motive
or reward as provided in Section 7 can be proved by invoking
the presumption under Section 20 provided the basic allegations
of the demand and acceptance are proved. In this case, we are
also concerned with the offence punishable under clauses (i)
and (ii) Section 13(1)(d) which is punishable under Section
13(2) of the PC Act. Clause (d) of sub-section (1) of Section 13,
which existed on the statute book prior to the amendment of
26th July 2018, has been quoted earlier. On a plain reading of
clauses (i) and (ii) of Section 13(1)(d), it is apparent that proof
of acceptance of illegal gratification will be necessary to prove
the offences under clauses (i) and (ii) of Section 13(1)(d). In
view of what is laid down by the Constitution Bench, in a given
case, the demand and acceptance of illegal gratification by a
public servant can be proved by circumstantial evidence in the
absence of direct oral or documentary evidence. While
answering the referred question, the Constitution Bench has
observed that it is permissible to draw an inferential deduction
of culpability and/or guilt of the public servant for the offences
punishable under Sections 7 and 13(1)(d) read with Section
13(2) of the PC Act. The conclusion is that in absence of direct
evidence, the demand and/or acceptance can always be proved
by other evidence such as circumstantial evidence.
18. The allegation of demand of gratification and
acceptance made by a public servant has to be established
beyond a reasonable doubt. The decision of the Constitution
Bench does not dilute this elementary requirement of proof
beyond a reasonable doubt. The Constitution Bench was dealing
with the issue of the modes by which the demand can be
proved. The Constitution Bench has laid down that the proof
need not be only by direct oral or documentary evidence, but it
can be by way of other evidence including circumstantial
evidence. When reliance is placed on circumstantial evidence to
prove the demand for gratification, the prosecution must
establish each and every circumstance from which the
prosecution wants the Court to draw a conclusion of guilt. The
facts so established must be consistent with only one hypothesis
that there was a demand made for gratification by the accused.
Therefore, in this case, we will have to examine whether there is
32
any direct evidence of demand. If we come to a conclusion that
there is no direct evidence of demand, this Court will have to
consider whether there is any circumstantial evidence to prove
the demand."
Subsequent to NEERAJ DUTTA'S case, the Apex Court in the case
of SOUNDARAJAN v. STATE5 has held as follows:
"FINDING ON PROOF OF DEMAND
9. We have considered the submissions. It is well settled
that for establishing the commission of an offence punishable
under Section 7 of the PC Act, proof of demand of gratification
and acceptance of the gratification is a sine qua non. Moreover,
the Constitution Bench in the case of Neeraj Dutta3 has
reiterated that the presumption under Section 20 of the PC
Act can be invoked only on proof of facts in issue, namely, the
demand of gratification by the accused and the acceptance
thereof.
10. As stated earlier, complainant PW-2 has not
supported the prosecution. He has not said anything in his
examination-in-chief about the demand made by the appellant.
The public prosecutor cross-examined PW-2. The witness stated
that there was no demand of a bribe made by the appellant.
According to him, he filed a complaint as the return of the sale
deed was delayed. Though PW-2 accepted that he had filed the
complaint, in the cross-examination, he was not confronted with
the material portions of the complaint in which he had narrated
how the alleged demand was made. The public prosecutor ought
to have confronted the witness with his alleged prior statements
in the complaint and proved that part of the complaint through
the concerned police officer who had reduced the complaint into
writing. However, that was not done.
11. Now, we turn to the evidence of the shadow witness
(PW-3). In the examination-in-chief, he stated that the
appellant asked the PW-2 whether he had brought the amount.
5
(2023) SCC OnLine SC 424
33
PW-3 did not say that the appellant made a specific demand of
gratification in his presence to PW-2. To attract Section 7 of
the PC Act, the demand for gratification has to be proved by the
prosecution beyond a reasonable doubt. The word used in
Section 7, as it existed before 26th July 2018, is 'gratification'.
There has to be a demand for gratification. It is not a simple
demand for money, but it has to be a demand for gratification.
If the factum of demand of gratification and acceptance thereof
is proved, then the presumption under Section 20 can be
invoked, and the Court can presume that the demand must be
as a motive or reward for doing any official act. This
presumption can be rebutted by the accused.
12. There is no circumstantial evidence of demand for
gratification in this case. In the circumstances, the offences
punishable under Section 7 and Section 13(2) read with Section
13(1)(d) have not been established. Unless both demand and
acceptance are established, offence of obtaining pecuniary
advantage by corrupt means covered by clauses (i) and (ii) of
Section 13(1)(d) cannot be proved."
The Apex Court in the case of NEERAJ DUTTA supra was clarifying
and interpreting the judgment in the case of NEERAJ DUTTA which
was rendered by a Constitution Bench and further holds that proof
of demand and acceptance of gratification is sine qua non for any
allegation under Section 7 of the Act, be it pre-amendment or post-
amendment. This is reiterated in the case of SOUNDARAJAN
supra.
34
12. The Apex Court, in its latest judgment, in the case of
AMAN BHATIA v. STATE (GNCT OF DELHI)6, while considering
the purport of Section 7 of the Act has held as follows:
".... .... ....
51. In C.K. Damodaran Nair v. Govt. of India, (1997) 9
SCC 477, this Court, although interpreting the term "accept" in
the context of the 1947 Act, observed that "accept" means to
take or receive with a consenting mind. In contrast, "obtain"
was understood to imply securing or gaining something as a
result of a request or effort. In both instances, a demand or
request by the receiver is a prerequisite for establishing an
offence under Sections 7 and 13(1)(d) of the PC Act.
52. It is well-settled that mere recovery of tainted
money, by itself, is insufficient to establish the charges against
an accused under the PC Act. To sustain a conviction under
Sections 7 and 13(1)(d) of the Act respectively, it must be
proved beyond reasonable doubt that the public servant
voluntarily accepted the money, knowing it to be a bribe. The
courts have consistently reiterated that the demand for a bribe
is sine qua non for establishing an offence under Section 7 of
the PC Act.
53. A five-Judge Bench of this Court in Neeraj
Dutta v. State (Government of NCT of Delhi), (2023) 4 SCC
731, categorically held that an offer by bribe-giver and the
demand by the public servant have to be proved by the
prosecution as a fact in issue for conviction under Sections 7
and 13(1)(d)(i) and (ii) of the PC Act. Mere acceptance of illegal
gratification without proof of offer by bribe-giver and demand by
the public servant would not make an offence under Sections 7
and 13(1)(d)(i) and (ii) of the PC Act. The relevant observations
are reproduced hereinbelow:
"88.4. (d) In order to prove the fact in issue,
namely, the demand and acceptance of illegal gratification
6
2025 SCC OnLine SC 1013
35
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."
(Emphasis supplied)
54. It was further explained by this Court in P.
Satyanarayana Murthy v. State of A.P., (2015) 10 SCC
152, as follows:
"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
36
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)
55. From the above exposition of law, it may be safely
concluded that mere possession and recovery of tainted
currency notes from a public servant, in the absence of proof of
demand, is not sufficient to establish an offence under Sections
7 and 13(1)(d) of the PC Act respectively. Consequently,
without evidence of demand for illegal gratification, it cannot be
said that the public servant used corrupt or illegal means, or
abused his position, to obtain any valuable thing or pecuniary
advantage in terms of Section 13(1)(d) of the PC Act.
56. The present case is not one of an "offer to pay by the
bribe-giver" where, in the absence of any demand from the
public servant, the mere acceptance of illegal gratification would
constitute an offence under Section 7 of the PC Act. The
expression "offer" indicates that there is a conveyance of an
intention to give, which must be communicated and understood
by the recipient, leading to meeting of minds. Consequently, the
offer is accepted. For such an acceptance to constitute an
offence under Section 7, there must be clear and cogent
evidence establishing that the public servant was aware of the
offer and accepted it voluntarily, knowing it to be illegal
gratification. In other words, even where there is no express
demand, the bribe-giver and the bribe-taker must be shown to
have been ad idem as regards the factum of offer of bribe.
57. By applying the abovementioned principles to the
evidence on record, we are of the considered view that, having
regard to material inconsistencies in the testimony of the
complainant and the testimony of the panch witness, the
allegation of demand by the appellant herein does not emerge
clearly, let alone being proved beyond reasonable doubt.
37
58. Undoubtedly, when dealing with a wholly reliable
witness, the court faces no difficulty in reaching a conclusion, it
may convict or acquit solely on the basis of such testimony,
provided it is free from any suspicion of interestedness,
incompetence, or subordination. Similarly, in the case of a
wholly unreliable witness, the court again faces no ambiguity in
discarding the testimony. The real challenge arises when the
witness is neither wholly reliable nor wholly unreliable. In such
situations, the court must proceed with caution and seek
corroboration in material particulars, whether through direct or
circumstantial evidence. The court's duty to act on the
testimony of a single witness arises when it is satisfied, upon a
careful perusal of the testimony, that it is free from all taints
and suspicions. [See: VediveluThevar v. State of Madras, 1957
SCC OnLine SC 13; State of Madhya Pradesh v. Balveer
Singh, 2025 SCC OnLine SC 390]."
The Apex Court also considers the presumption under Section 20 of
the Act and holds that on examination of evidence the prosecution
has failed to establish the guilt beyond reasonable doubt. The Apex
Court has held as follows:
".... .... ....
v. Presumption under Section 20 of the PC Act
64. Insofar as the presumption under Section 20 of the
PC Act is concerned, such presumption is drawn only qua the
offence under Sections 7 and 11 respectively and not qua the
offence under Section 13(1)(d) of the PC Act. The presumption
is contingent upon the proof of acceptance of illegal gratification
to the effect that the gratification was demanded and accepted
as a motive or reward as contemplated under Section 7 of the
PC Act. Such proof of acceptance can follow only when the
demand is proved.
38
65. In that case, the prosecution evidence alone cannot
be considered for the purpose of coming to the conclusion. The
evidence led by the prosecution and, the suggestions made by
the defence witnesses, if any, are also required to be
considered. It is then to be seen as to whether the total effect of
the entire evidence led before the court is of a nature by which
the only conclusion possible was that the public servant
accepted the amount. If the answer is in affirmative, then alone
it can be held that the prosecution established the case beyond
reasonable doubt.
66. Undoubtedly, the presumption under Section 20
arises once it is established that the public servant accepted the
gratification. However, in determining whether such acceptance
occurred, the totality of the evidence led at the trial must be
appreciated. The evidence led by the prosecution, the
suggestions made by the defence witnesses, if any, the entire
record is required to be considered. Only if the cumulative effect
of all the evidence is such that the sole possible conclusion is
that the public servant accepted the gratification can it be said
that the prosecution has established its case beyond reasonable
doubt.
67. On examination of the entire evidence, we are of the
opinion that the prosecution has failed to establish beyond all
reasonable doubt, the demand of bribe and its acceptance, in a
trap laid by the ACB. In such circumstances, there is no
question of a presumption under Section 20. Consequently, we
find ourselves compelled to conclude that it would be entirely
illegal to uphold the conviction of the appellant under Sections
13(1)(d)(i) and (ii) read with Section 13(2) of the Act.
G. CONCLUSION
68. In light of the aforesaid discussion, we have reached
the following conclusion:
68.1 The legislature has used a comprehensive definition
of "public servant" to achieve the purpose of punishing and
curbing the growing menace of corruption. Keeping this
intention of the legislature in mind, we are of the view that the
definition of "public servant" as defined under the PC Act should
39
be given a purposive and wide interpretation so as to advance
the object underlying the statute.
68.2 It is the nature of duty being discharged by a person
which assumes paramount importance when determining
whether such a person falls within the ambit of the definition of
public servant as defined under the PC Act.
68.3 Stamp vendors across the country, by virtue of
performing an important public duty and receiving remuneration
from the Government for the discharge of such duty, are
undoubtedly public servants within the ambit of Section 2(c)(i)
of the PC Act.
68.4 In the case at hand, the appellant was eligible for
receiving discount on the purchase of stamp papers owing to the
license that he was holding. Further, the discount is traceable to
and is governed by the 1934 Rules framed by the State
Government. Thus, the appellant, without a doubt, could be said
to be "remunerated by the government" for the purposes of
Section 2(c)(i) of the PC Act.
68.5 Further, the prosecution has failed in establishing
the allegation of demand for illegal gratification and acceptance
thereof beyond reasonable doubt. Therefore, the conviction of
the appellant for the offences under Section 7 and 13(1)(d) read
with Section 13(2) of the PC Act cannot be sustained and is,
thus, liable to be set aside."
On a coalesce of the judgments rendered by the Apex Court as
quoted supra, the soul of Section 7 is demand and acceptance. The
unmistakable inference on the interpretation, in the considered view
of the Court would be, if there is demand but no acceptance it
would not make an offence under Section 7. If there is acceptance
but no demand, it would then also make no offence under Section
40
7. An act alleged under Section 7 should have the ingredients of
demand and acceptance and it is for the performance of a public
duty or forbearance from performance. Therefore, demand and
acceptance should be for the purpose of performance of some duty.
For such performance there should be work pending at the hands of
the public servant against whom Section 7 is alleged.
13. In the light of the law laid down by the Apex Court, for an
offence under Section 7(a) there should be demand, there should
be acceptance and the public servant must be caught receiving
undue advantage to generate a favour. Therefore, in legal terms
such proceedings are called as trap proceedings. Trap is no where
defined under any enactment. It is the process involved from time
to time. The crux is that they are caught red handed. There are
plethora of cases where the public servants are seen demanding the
amount and accepting it. Recovery of the amount is the key in
certain cases. If the amount is recovered the sodium test is
conducted and the hands of the public servant would turn pink and
then it would undoubtedly become a matter of trial for any public
servant to come out clean, unless the facts are otherwise. Where
41
the public servant was not even present at the scene of trap it is a
case of miserably failed trap.
14. In the case at hand, there is neither demand nor
acceptance nor any proceeding laid by the Lokayukta. There is no
pre-trap panchanama, no trap proceedings and no recovery from
the hands of the petitioner. The amount of ₹5,000/- transferred
through Google pay to the account of the petitioner has been
satisfactorily explained, as the amount transferred was towards fee.
The reason appears to be acceptable as no person when taking
illegal gratification would ask the complainant to transfer it from
bank to bank through Google pay. ₹1,000/- being given to the
Driver is for what reason the complaint itself does not indicate. The
entire crux of the complaint is that the petitioner has demanded the
aforesaid amount of ₹5,000/- to deliver the inspection report to the
complainant. This itself would belie the allegation, as the job of the
petitioner was to inspect the meter as Assistant Executive Engineer
and submit the inspection report to the jurisdictional Executive
Engineer who would take further steps in the matter.
42
15. The inspection was conducted by the petitioner on
04-07-2024 and the report was submitted on 05-07-2024 to the
Executive Engineer. Those facts are clearly borne out from the
documents appended to the petition. This becomes a classic
illustration where even investigation cannot be permitted to be
continued against the petitioner, as the very registration of crime is
on bald allegations. There is not even a prima facie proof of
demand or acceptance nor there is any recovery of amount on the
spot or the petitioner being caught red handed while receiving
₹5,000/-. None of the necessary ingredients as has been elucidated
by the Apex Court in the afore-quoted judgments are present in the
case at hand. In that light the petition deserves to be allowed, as
permitting an officer to undergo the rigmarole of procedure in the
case at hand where the case of the prosecution is too bleak would
be abuse of the process of law and result in miscarriage of justice.
Therefore, I deem it appropriate to exercise the jurisdiction under
Section 482 of the Cr.P.C., and obliterate the crime so registered
against the petitioner.
43
16. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) Proceedings pursuant to Crime No.6 of 2024 pending
before the IX Additional District and Sessions Judge,
Bengaluru Rural District stand quashed.
(iii) It is made clear that the observations made in the
course of the order are only for the purpose of
consideration of the case of petitioner under Section
528 of the Bharatiya Nagarik Suraksha Sanitha and the
same shall not bind or influence the proceedings against
any other accused.
SD/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:MJ/SS
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