The demand of illegal gratification is sine qua non to constitute the offence and mere recovery of currency notes cannot constitute the offence under Section 7 : The High Court of Chhattisgarh

NAFRHIGH COURT OF CHHATTISGARH BILASPURCriminal Appeal No.13619Judgment Reserved on : 22.9 . 2021 Judgment Delivered on : 18.10.2021Bhimendra Kumar Verma son of Late Udayram Verma aged about 47 yearspresently residing at Village Jaamgaon Police StationPatanDistrict Durg Chhattisgarh Appellantversus State of Chhattisgarh through Station House Officer Anti Corruption BureauRaipur District Raipur Chhattisgarh Respondent For Appellant : Shri Kashif Shakeel AdvocateFor Respondent : Shri Ghanshyam Patel Government Advocate Hon ble Shri Justice Arvind Singh ChandelC.A.V. JUDGMENT1.This appeal has been preferred against judgment dated 30.8.2019passed by the Special Judge under the Prevention of CorruptionAct 1988and 8th Additional SessionsJudge Raipur in Special Sessions Trial No.3116 wherebythe Appellant has been convicted and sentenced as under: ConvictionSentenceUnder Section 7 of the PCAct Rigorous Imprisonment for 3years and fine of Rs.5 000 with default stipulationUnder Section 13(1)(d)read with Section 13(2) ofthe PC Act Rigorous Imprisonment for 3years and fine of Rs.5 000 with default stipulationBoth the jail sentences aredirected to run concurrently 22.Case of the prosecution in short is that at the relevant time theAppellant was posted as a Sub Engineer in Zone No.5 of RaipurMunicipal Corporation. Complainant Devendra Kumar Choudhary(PW1) was having a plot measuring 1650 Sq.Ft. by the side of theroad in Changorabhatha Raipur. For widening of the road someportion of his plot was acquired. In the remaining part of the plotmeasuring 1211 Sq.Ft. for commercial construction of 455 Sq.Ft.at the ground floor and for construction of commercial office andresidence total in 500 Sq.Ft. at the first floor he had obtained duepermission from the Municipal Corporation but he had not startedthe construction. Thereafter changing the previous plan ofconstructions he submitted a new application for construction of aparking in the ground floor and for construction of commercialbuilding in remaining floors. For the said purposes when he metwith the Appellant he demanded bribe of Rs.5 000. Since theComplainant did not want to give the bribe on 13.7.2009 hesubmitted a written complaintto the Superintendent ofPolice Anti Corruption Bureau Raipur. For confirmation he wasgiven a micro cassette tape recorder along with a cassette forrecording of the conversation. On 15.7.2009 he again met with theAppellant and recorded their conversation in the said tape recorder.On 17.7.2009 he went to the office of Superintendent of Police Anti Corruption Bureau and submitted the tape recorder along withthe recorded cassette and also submitted his second writtencomplaintof the conversation was prepared. TheComplainant submitted 10 currency notes in the denomination ofRs.500 total Rs.5 000 for giving to the Appellant as bribe. Theirnumbers were noted and a panchnama thereof was prepared. Atrap proceeding was demonstrated to the Complainant and thepanch witnesses. The Complainant was again given a microcassette tape recorder along with a cassette for recordingconversation to be taken between the Complainant and theAppellant at the time of giving bribe. Thereafter the trap party wentto the office of the Appellant. The Complainant alone went insidethe office of the Appellant. After some time he came out of theoffice and gave a signal to the trap party. The trap party wentinside the office of the Appellant where his hands were caught andon being asked he told that the tainted money was kept in thedrawer of the table. Numbers of the tainted currency notes werecompared with the numbers already recorded in the preliminarypanchnama. The numbers matched. Hands of the Appellant andthe recovered tainted currency notes were dipped into differentsolutions of sodium carbonate on which their colour turned intopink. On completion of the investigation and after obtainingsanction for prosecution a charge sheet was filed against theAppellant. Charges were framed against him by the Trial Court. 3.To bring home the offence the prosecution examined as many as12 witnesses. Statement of the Appellant was also recorded underSection 313 of the Code of Criminal Procedure in which he deniedthe guilt pleaded innocence and false implication. No witness hasbeen examined by the Appellant in his defence. 44.On completion of the trial the Trial Court convicted and sentencedthe Appellant as mentioned in 1st paragraph of this judgment.Hence this appeal. 5.Learned Counsel appearing for the Appellant submitted that theTrial Court has wrongly convicted the Appellant. It was argued thatboth the demand and the acceptance of bribe money by theAppellant are not proved in this case. Complainant DevendraKumar Choudharyhas not supported the case of theprosecution and turned hostile. He categorically admitted that henever met with the Appellant nor did the Appellant ever make anydemand for bribe from him. According to this witness his brotherVijay used to go to the office of the Municipal Corporation and thedemand of money was made from him. This witness furtheradmitted that on submission of the amended plan and map for theconstructions Vijay was asked to deposit fresh fees for obtainingdue permission. Since according to the Complainant necessaryfees was already deposited but demand for deposit of fees wasagain made he went to the office of Anti Corruption Bureau andmade the complaint. It was further argued that as stated by theComplainant at the time of trap also the Appellant had not madeany demand nor did he accept any money from him as bribe and hehimself without the knowledge of the Appellant kept the money inthe drawer of the table and that money on being asked by the trapparty was taken out by the Appellant from the drawer. Therefore even acceptance of bribe is not established. In the transcriptions(Ex.P4 and P9) also there is no demand of bribe by the Appellant.Therefore if any amount has been recovered from the Appellant on 5being taken out by him from the drawer of the table the offencealleged against him is not proved. It was further argued that thesanction for prosecution has been accorded mechanically withoutexamining the documents and evidence and therefore theconviction of the Appellant is not sustainable. Reliance was placedupon13 SCC 55(2015) 10 SCC 152(2016) 3 SCC 108and3 SCC 687demand acceptance and(iii) recovery. 10.In B. Jayaraj caseit was held by the Supreme Court asunder: “7.Insofar as the offence under Section 7 is concerned it is a settled position in law that demand of illegal gratificationis sine qua non to constitute the said offence and mere recovery 6of currency notes cannot constitute the offence under Section 7unless it is proved beyond all reasonable doubt that the accusedvoluntarily accepted the money knowing it to be a bribe. Theabove position has been succinctly laid down in severaljudgments of this Court. By way of illustration reference may bemade to the decision in C.M. Sharma v. State of A.P. 15SCC 1 and C.M. Girish Babu v. CBI 3 SCC 779.8.In the present case the complainant did not supportthe prosecution case insofar as demand by the accused isconcerned. The prosecution has not examined any other witness present at the time when the money was allegedly handed over tothe accused by the complainant to prove that the same waspursuant to any demand made by the accused. When thecomplainant himself had disowned what he had stated in theinitial complaintbefore LW 9 and there is no otherevidence to prove that the accused had made any demand theevidence of PW 1 and the contents of Ext. P 11 cannot be reliedupon to come to the conclusion that the above material furnishesproof of the demand allegedly made by the accused. We are therefore inclined to hold that the learned trial court as well asthe High Court was not correct in holding the demand alleged tobe made by the accused as proved. The only other materialavailable is the recovery of the tainted currency notes from thepossession of the accused. In fact such possession is admitted bythe accused himself. Mere possession and recovery of thecurrency notes from the accused without proof of demand willnot bring home the offence under Section 7. The above also willbe conclusive insofar as the offence under Sections 13(1)(d)(i)andis concerned as in the absence of any proof of demandfor illegal gratification the use of corrupt or illegal means orabuse of position as a public servant to obtain any valuable thingor pecuniary advantage cannot be held to be established.9.Insofar as the presumption permissible to be drawnunder Section 20 of the Act is concerned such presumption canonly be in respect of the offence under Section 7 and not theoffences under Sections 13(1)(d)(i) andof the Act. In anyevent it is only on proof of acceptance of illegal gratificationthat presumption can be drawn under Section 20 of the Act thatsuch gratification was received for doing or forbearing to do anyofficial act. Proof of acceptance of illegal gratification canfollow only if there is proof of demand. As the same is lackingin the present case the primary facts on the basis of which thelegal presumption under Section 20 can be drawn are whollyabsent.” 711.Further in P. Satyanarayana Murthy casethe SupremeCourt held as follows: “22.In a recent enunciation by this Court to discern theimperative prerequisites of Sections 7 and 13 of the Act it hasbeen underlined in B. Jayaraj v. State of A.P. 13 SCC55 in unequivocal terms that mere possession and recovery ofcurrency notes from an accused without proof of demand wouldnot establish an offence under Section 7 as well as Sections13(1)(d)(i) andof the Act. It has been propounded that inthe absence of any proof of demand for illegal gratification theuse of corrupt or illegal means or abuse of position as a publicservant to obtain any valuable thing or pecuniary advantagecannot be held to be proved. The proof of demand thus hasbeen held to be an indispensable essentiality and of permeatingmandate for an offence under Sections 7 and 13 of the Act. QuaSection 20 of the Act which permits a presumption asenvisaged therein it has been held that while it is extendableonly to an offence under Section 7 and not to those underSections 13(1)(d)(i) andof the Act it is contingent as wellon the proof of acceptance of illegal gratification for doing orforbearing to do any official act. Such proof of acceptance ofillegal gratification it was emphasised could follow only ifthere was proof of demand. Axiomatically it was held that inabsence of proof of demand such legal presumption underSection 20 of the Act would also not arise.23.The proof of demand of illegal gratification thus isthe gravamen of the offence under Sections 7 and 13(1)(d)(i)andof the Act and in absence thereof unmistakably thecharge therefor would fail. Mere acceptance of any amountallegedly by way of illegal gratification or recovery thereof dehors the proof of demand ipso facto would thus not besufficient to bring home the charge under these two sections ofthe Act. As a corollary failure of the prosecution to prove thedemand for illegal gratification would be fatal and mererecovery of the amount from the person accused of the offenceunder Section 7 or 13 of the Act would not entail his convictionthereunder.” 12.Again in Krishan Chander caseit was held by theSupreme Court thus: 8“35.It is well settled position of law that the demand forthe bribe money is sine qua non to convict the accused for theoffences punishable under Sections 7 and 13(1)(d) read withSection 13(2) of the PC Act. The same legal principle has beenheld by this Court in B. Jayaraj v. State of A.P. 13 SCC55 A. Subair v. State of Kerala 6 SCC 587 and P.Satyanarayana Murthy v. State of A.P. 10 SCC 152upon which reliance is rightly placed by the learned SeniorCounsel on behalf of the appellant.” In paragraph 39 it was further held by the Supreme Court thus: “39.In view of the aforesaid reasons the approach ofboth the trial court and the High Court in the case is erroneousas both the courts have relied upon the evidence of theprosecution on the aspect of demand of illegal gratification fromthe complainant Jai Bhagwanby the appellant thoughthere is no substantive evidence in this regard and the appellantwas erroneously convicted for the charges framed against him.The prosecution has failed to prove the factum of demand ofbribe money made by the appellant from the complainant JaiBhagwanwhich is the sine qua non for convicting himfor the offences punishable under Sections 7 and 13(1)(d) readwith Section 13(2) of the PC Act. Thus the impugned judgmentand orderof the High Court is not only erroneous butalso suffers from error in law and therefore liable to be setaside.”13.In N. Vijayakumar caseit was held by the Supreme Courtas follows: “26.It is equally well settled that mere recovery by itselfcannot 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 3 SCC 779 and in B. Jayaraj v.State of A.P. 13 SCC 55. In the aforesaid judgments ofthis Court while considering the case under Sections 7 13(1)(d)(i) andof the Prevention of Corruption Act 1988 it isreiterated that to prove the charge it has to be proved beyondreasonable doubt that the accused voluntarily accepted moneyknowing it to be bribe. Absence of proof of demand for illegalgratification and mere possession or recovery of currency notes 9is not sufficient to constitute such offence. In the saidjudgments it is also held that even the presumption underSection 20 of the Act can be drawn only after demand for andacceptance of illegal gratification is proved. It is also fairly wellsettled that initial presumption of innocence in the criminaljurisprudence gets doubled by acquittal recorded by the trialcourt.27.The relevant paras 7 8 and 9 of the judgment in B.Jayaraj v. State of A.P. 13 SCC 55 read as under:15 SCC 1 and C.M.Girish Babu v. CBI 3 SCC 779.8.In the present case the complainantdid not support the prosecution case insofar asdemand by the accused is concerned. Theprosecution has not examined any otherwitness present at the time when the moneywas allegedly handed over to the accused bythe complainant to prove that the same waspursuant to any demand made by the accused.When the complainant himself had disownedwhat he had stated in the initial complaint(Ext.P 11) before LW9 and there is no otherevidence to prove that the accused had madeany demand the evidence of PW1 and thecontents of Ext. P 11 cannot be relied upon tocome to the conclusion that the above materialfurnishes proof of the demand allegedly madeby the accused. We are therefore inclined tohold that the learned trial court as well as theHigh Court was not correct in holding the 10demand alleged to be made by the accused asproved. The only other material available isthe recovery of the tainted currency notes fromthe possession of the accused. In fact suchpossession is admitted by the accused himself.Mere possession and recovery of the currencynotes from the accused without proof ofdemand will not bring home the offence underSection 7. The above also will be conclusiveinsofar as the offence under Sections 13(1)(d)(i) andis concerned as in the absence ofany proof of demand for illegal gratification the use of corrupt or illegal means or abuse ofposition as a public servant to obtain anyvaluable thing or pecuniary advantage cannotbe held to be established.9.Insofar as the presumption permissibleto be drawn under Section 20 of the Act isconcerned such presumption can only be inrespect of the offence under Section 7 and notthe offences under Sections 13(1)(d)(i) andof the High Courtis fit to be set aside. Before recording conviction under theprovisions of the Prevention of Corruption Act the courts haveto take utmost care in scanning the evidence. Once conviction is 11recorded under the provisions of the Prevention of CorruptionAct it casts a social stigma on the person in the society apartfrom serious consequences on the service rendered. At the sametime it is also to be noted that whether the view taken by the trialcourt is a possible view or not there cannot be any definiteproposition and each case has to be judged on its own merits having regard to evidence on record.”14.In the light of above view taken by the Supreme Court I shallexamine the statements of witnesses of the present case. In theinstant case Complainant Devendra Kumar Choudharyhasnot supported the case of the prosecution and turned hostile. Asregards the incident in his Court statement it is deposed byComplainant Devendra Kumar Choudharythat for obtainingbuilding construction permission he had submitted an application inthe prescribed proforma and for seeking information in that regardhe had been sending his brother Vijay to the office of the MunicipalCorporation. According to this witness Vijay had been telling himthat the Appellant was making demand of Rs.5 000. On this hehimself met with the Appellant. The Appellant demanded Rs.5 000from him. On this he went to the office of the Anti CorruptionBureau and submitted the written complaintin the office of the Anti Corruption Bureau or not is not 12recollected to him. With regard to the trap proceeding this witnessdeposed that at the time of trap he alone had gone inside the officeof the Appellant. There a talk took place between him and theAppellant and he took out the tainted money from his pocket andkept the same in the drawer of the table placed there. Thereafter the trap party entered the office of the Appellant and caught theAppellant. In paragraphs 17 and 18 of his examination this witnesscategorically deposed that the written complaintsof the conversation there is nodemand of bribe from the Complainant. In this regard panchwitness Abhinav Shrivastavaand Investigating Officer S.S.Bhagatadmitted the fact that the transcriptiondoesnot contain anything regarding demand of bribe. With regard to thetranscriptionalso S.S. Bhagatfurther admitted thatthe transcriptiondoes not contain anything to show that anydemand of bribe was made by the Appellant for doing the work ofthe Complainant. 16.It is not in dispute that the tainted money was not recovered in thepersonal search of the Appellant but it was recovered from adrawer of the table placed in his office. As deposed byComplainant Devendra Kumar Choudharyon beingpressurised by the Anti Corruption Bureau officials the Appellant 14took out the tainted money from the drawer of the table and handedover the same to them. Whereas according to the case ofprosecution the tainted money was taken out from the said drawerof the table by panch witness Moinuddindeposed that at the time of trap proceeding he carried out the work of dipping of hands and tainted money indifferent solutions of sodium carbonate vide Ex.P19. From perusalof Ex.P19 it reveals that panch witness Moinuddin who had takenout the tainted money from the drawer of the table had dipped hishands into a solution of sodium carbonate but colour of thatsolution had not turned into pink. Therefore the case of theprosecution that panch witness Moinuddin had taken out the taintedmoney from the drawer of the table is not established. Hence there appears substance in the statement of ComplainantDevendra Kumar Choudharythat on being pressurised bythe Anti Corruption Bureau officials the Appellant had taken out thetainted money from the drawer of the table. 17.On a minute examination of the above evidence it is clear thatComplainant Devendra Kumar Choudharyhas notsupported the case of the prosecution and turned hostile. Withregard to the initial demand also he has not supported the case ofthe prosecution. The transcriptionalso does not containany demand of bribe. Therefore the initial demand is notestablished. With regard to demand of bribe at the time of trapalso no shadow witness is available in this case. ComplainantDevendra Kumar Choudharyhimself has not supported thecase of the prosecution on this point also. The transcription 15(Ex.P9) does not show that at the time of trap also the Appellantmade any demand for bribe from the Complainant. From theevidence adduced by the prosecution it is clear that in the personalsearch of the Appellant no tainted money was recovered from him.The tainted money was recovered from the drawer of the table. Asper the statement of Complainant Devendra Kumar Choudhary(PW1) he had kept the tainted money in the drawer of the tablewithout the knowledge of the Appellant. On being told by thiswitness that the tainted money was kept in the drawer of the table the Appellant after being pressurised by the Anti CorruptionBureau officials took out the tainted money from the said drawer ofthe table and handed over the same to them. Therefore if ondipping of the hands of the Appellant in a solution of sodiumcarbonate colour of that solution turned into pink that does not helpthe case of the prosecution. Thus from the entire evidenceadduced by the prosecution in this case in my considered view both demand and acceptance of bribe money are not proved.Therefore conviction of the Appellant is not sustainable. He isentitled to get benefit of doubt. 18.In the result the appeal is allowed. The conviction and sentenceimposed upon the Appellant are set aside and he is acquitted of allthe charges framed against him. Sd JUDGE Gopal 

Summary: In a case of illegal gratification, there are three essential ingredients to constitute the offence. They are (i) demand, (ii) acceptance and (iii) recovery.  The aforesaid has been established by the High Court of Chhattisgarh while adjudicating the case of Bhimendra Kumar Verma v. State of Chhattisgarh [Criminal Appeal No.1367 of 2019] which was decided upon by a single judge bench comprising Justice Arvind Singh Chandel on 18th October 2021. The brief facts of the case are as follows. Complainant Devendra Kumar Choudhary (PW1) had not supported the case of the prosecution and turned hostile. With regard to the initial demand also, he has not supported the case of the prosecution. The transcription (Ex.P4) also does not contain any demand of bribe. Therefore, the initial demand was not established. With regard to demand of bribe at the time of trap also, no shadow witness is available in this case. Complainant Devendra Kumar Choudhary (PW1) himself had not supported the case of the prosecution on this point also. The transcription 15does not show that at the time of trap also, the Appellant made any demand for bribe from the Complainant. From the evidence adduced by the prosecution, it is clear that in the personal search of the Appellant, no tainted money was recovered from him. The tainted money was recovered from the drawer of the table. As per the statement of Complainant Devendra Kumar Choudhary (PW1), he had kept the tainted money in the drawer of the table without the knowledge of the Appellant. On being told by this witness that the tainted money was kept in the drawer of the table, the Appellant, after being pressurised by the Anti-Corruption Bureau officials, took out the tainted money from the said drawer of the table and handed over the same to them. The court perused the facts and arguments presented. It was hence of the opinion that “if on dipping of the hands of the Appellant in a solution of sodium carbonate colour of that solution turned into pink, that does not help the case of the prosecution. Thus, from the entire evidence adduced by the prosecution in this case, in my considered view, both demand and acceptance of bribe money are not proved. Therefore, conviction of the Appellant is not sustainable. He is entitled to get benefit of doubt. 18. In the result, the appeal is allowed. The conviction and sentence imposed upon the Appellant are set aside and he is acquitted of all the charges framed against him.”