Judgment & Order (Cav)

1. Heard Sri M Nath, learned senior counsel assisted by Mr. A Bhattacharjee for the appellant and also heard B. Sharma, learned Additional Public Prosecutor for the State of Assam.

2. The Trial Court records as requisitioned have been received and have been perused with the assistance of the Learned senior Counsel appearing for the appellant and the learned APP.

3. The judgement dated 19.6.2014 passed by the Learned Special Judge, Assam in Special Case no 1/2010, holding the appellant guilty of commission of offences under Section 7 of the Prevention of Corruption Act, 1988 and sentencing him to undergo rigorous imprisonment of 1(one) year and to pay a fine of Rupees 10,000/- (Rupees ten thousand only), in default to suffer simple imprisonment of two months has been assailed in this Criminal Appeal. The alleged date of commission of the offence was 27.2.2004, on which date the appellant had been apprehended in a “Trap Case’ by the officials of the Vigilance and Anti Corruption Police Station Station, Guwahati, (hereinafter referred to as V&AC) when he allegedly accepted a bribe of Rs 1800/- from the informant in connection with a transport permit of a vehicle owned by the informant.

4. The prosecution case, as unfolded during trial, is that on 27.02.2004, one Sri Bhaskar Barman of Nalbari lodged an FIR before the Superintendent of Police, V&AC, Assam, Guwahati alleging that one Sri Amar Deka, an employee of the office of the Commissioner of Transport, Housefed, Dispur had been demanding bribe 3000/- for putting up the papers before the concerned office relating to permit of his vehicle No. AS146411. It was also alleged in the FIR that on 27.02.2004 the accused had agreed to give the permit to the complainant for a consideration of Rs. 1800/- and as such prayed to take appropriate action. On receipt of the FIR the Superintendent of Police, V&AC registered ACB PS Case No. 2/2004 u/s 7 of Prevention of Corruption Act, 1988. On receipt of the FIR, the officer in charge cum Superintendent of Police, V&AC directed Inspector of Police, Sarbananda Gohain to lay a trap on accused Amar Deka, LDA of the office of the Commissioner of Transport, Guwahati constituting a trap team consisting of 10 members. The trap team also comprised Umesh Dutta, who was an independent witness and Bhaskar Barman who was the complainant. The trap team used phenolphthalein powder and before going for trap a practical demonstration was done in the office of the V&AC and a pre-trap memorandum was also prepared.

At the office of the Commissioner of Transport, Housefed, Dispur, Guwahati, as per trap plan, complainant Bhaskar Barman put the trap money amounting to Rs. 1800/- which were treated with phenolphthalein powder on the table of the appellant and he picked up the money and was caught red handed. Investigation revealed a prima facie case against accused Amar Deka u/s 7 of Prevention of Corruption Act, 1988 and after getting the necessary sanction for prosecution from the competent authority, charge sheet was filed against the accused u/s 7 of Prevention of Corruption Act.

5. The prosecution, in order to prove its case, examined 10 Nos of Prosecution Witnesses (PWs), including the complainant, one independent witness, one FSL expert, the members of trap laying team, the prosecution sanction authority and the Investigating Officer(s).

6. The defence in order to disprove the prosecution case examined 3 Nos. of Defence witnesses (DWs).

7. The Learned Trial Court examined one Court witness as CW-1 during trial in order to determine the plea of insanity taken by the accused. The deposition of CW-1 was held to be not connected with the charge framed against the accused Sri Amar Deka, and as such the deposition of CW-1 was not discussed while appreciating the evidence of the case.

8. The Ld. Trial Court framed the following points for determination.

                   “POINT FOR DETERMINATION:

                   “5. Whether on 27.02.2004 accused Amar Deka while serving as Dealing Asstt in the office of the Commissioner of Transport demanded and received Rs. 1800/- only as illegal gratification from one Sri Bhaskar Barman for putting up the necessary papers of permit of his vehicle (bus) No. AS 146411 before the concerned authority and was caught red handed and thereby committed an offence punishable u/s 7 of Prevention of Corruption Act, 1988?”

9. While discussing the evidence, Ld. Trial Court recorded as follows:

                   “16. Let us now scrutinize the evidence of PW-6 the complainant. We have to keep in mind that while scrutinizing the evidence we have to consider the entire evidence as a whole. We can not take one part of the evidence which is favourable or disfavourable to one party or the other. PW-6 in his evidence in chief deposed that on 18.2.2004 he submitted his application for permit before dealing assistant Amar Deka who asked him to come after 2/3 days. After 2/3 days when he again went to the office accused told him to come after few days as the work was not complete. After 4/5 days, he again met accused in his office when the accused told him to meet his Sir for permit and asked him to come after some days. The PW-6 expressed his difficulties to come again and again from Nalbari to Guwahati before the ‘the official’ then one employee asked him to pay Rs. 3000/- for doing the work as he had already talked with accused Amar Deka, but PW-6 refused to pay bribe to “the official”. If we read the sentences together we found that by word “the official” PW-6 is mentioning accused Amar Deka. PW-6 is referring the other person as an employee. PW-6 also states that on the day of lodging the FIR before coming to the office of Vigilance & Anti Corruption he went to the State Transport Officer where he met “the official” who agreed to do the work for Rs. 1800/-. By taking into consideration of the above in its entirety we can safely state that by the term “the official” the PW-6 refers to accused Amar Deka and none else.

                   17.Moreover, we also have to take into consideration the fact that FIR was lodged on 27.2.04, application for permit was submitted on 18.2.04, fees for permit paid on 19.2.04, and evidence shows that in between the date of submission of the application on 18.2.04 and lodging of FIR on 27.2.04 PW-6 met accused at least 2/3 times. It shows that only after confirming the identity of the accused PW-6 mentions his name in the FIR (Ext. 5) and by the term “the official” he means none other than the accused Amar Deka.

                   19. In our case PW-6 in his examination in chief deposed that on the day of occurrence he met accused Amar Deka on his table, told him to accept the money and kept the money on the table. Amar Deka took the money in his hand and asked PW-6 for what purpose the money is paid, PW-6 replied that the money is given to do his permit work. In his cross-examination also PW-6 reiterates the same. All the above goes to show that on the day of occurrence Amar Deka had taken the money given by PW-6 after clarifying the purpose of giving the money. PW-6 clarified that the money was given to do his permit work. Evidence of PW-6 shows that there was no denial or refusal on the part of the accused. Evidence further shows that the accused has not denied the trap recovery memo (M Ext. 3), by which the bribe money amounting to Rs. 1800/- smeared with phenolphthalein powder was recovered from his possession. All these goes to suggest that on the day of occurrence the bribe money of Rs. 1800/- was given to the accused who accepts the same and the bribe amount was recovered from his possession.”

10. The learned Trial Court also found corroboration between evidence of PW 9, who was the trap laying officer and PW 4, who was a member of the trap laying team. The learned Trial Court then drew presumption available u/s 20 of the Prevention of Corruption Act. The learned Trial Court thereafter went ahead to hold that the prosecution has been able to prove the allegations beyond reasonable doubt. Accordingly, the impugned conviction and sentencing followed, which are now assailed.

11. Records reveal that the appellant had been arrested on 28th of February 2004. He was granted bail and released on 1st of March 2004. The appellant remained on bail during the investigation and trial. The sentence imposed on the appellant had been kept in abeyance during the pendency of the appeal.

12. The learned Senior Counsel has opened his arguments by submitting that the learned Trial Court had committed a serious error when it failed to appreciate that there was no evidence on record to justify the allegation that the appelant had demanded bribe from either the informant who had lodged the FIR or from any other person for that matter. The learned senior counsel has submitted that this aspect assumes importance since it is a settled position in law that to hold a person guilty of committing an offence under the PC Act, 1988, proof of demand for bribe is a necessary ingredient.

13. Elaborating his arguments, the learned senior counsel has submitted that the alleged incident is of 2010 and the learned senior counsel has caused production of the relevant portion of Section 7 of the PC Act, 1988, as it stood then, which 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.- (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 as a reward for this service, the public servant has committed an offence under this section."

14. The learned Senior Counsel has submitted that it is a settled position of law that in ‘trap cases’, the prosecution must prove both the demand and acceptance of the bribe amount. He has submitted that in the absence of either of the aforesaid two necessary ingredients, the prosecution case has to necessarily fail and the learned Trial court would not be justified in invoking the presumption under section 20 of the Act of 1988.

15. By referring to the evidence led by the prosecution, the learned senior counsel has submitted that there is no iota of evidence to show that the appellant herein had at any point of time demanded bribe from the informant. He has submitted that in fact there is no direct evidence on record to indicate that the informant had, prior to the trap, even met the appellant or had any direct conversation with him. He submits that the evidence of the PW 6, who was the complainant did not indicate that the appellant had at any point of time demanded money for doing the work of the complainant. He submitted that the complainant had clearly stated that the appellant had asked him to come after a few days since ‘Sir’ was on leave. The complainant, according to Mr. Nath, learned Senior Advocate, had stated that one employee of the office asked him to pay Rs. 3000/-, saying he had already talked with the appellant. Before going to the office of Anti Corruption, he had gone to the Transport office again where he met the ‘official’ who agreed to do the work at Rs. 1800/-. The learned senior counsel then drew attention to the cross examination of the complainant, PW 6, where he had specifically stated that “Amar Deka did not directly demand me for money”. The learned senior counsel has submitted that, since the “demand” had remained falsified or unproved, the appellant deserved to be acquitted of the charges levelled under the provisions of Section 7 of the Act of 1988.

16. The learned senior counsel had thereafter submitted that although there were other good grounds which would render the judgment of the learned Trial court incorrect and fallacious, the sole ground of absence of proof of demand would be enough to let this Court set aside the conviction and sentence imposed on the appellant.

17. Countering the submissions made on behalf of the appellant, Mr. B Sharma, the learned Additional Public Prosecutor has submitted that the complainant in his evidence had clearly stated that the employee who had demanded the sum of Rs. 3000/- had told him that he had already talked to the appellant herein. He further submits that it remained an unrebutted fact that the complainant had gone to the table of Amar Deka, the appellant herein, and placed the money on the table and asked him to take it, whereupon Amar Deka took it in his hands and asked him for what purpose was it paid. He then submitted that the tainted money was recovered from the appellant. He submitted that therefore the connection of the appellant to the tainted money stood proved. He accordingly prayed for dismissal of the appeal.

18. Before venturing to evaluate the evidence led by the prosecution to prove the ingredients of the charge levelled on the appellant, which according to the learned Trial Court stood proved, this Court deems it fit to refer to the settled position of law with regard to requirement of proof of “demand” to hold theaccused guilty of contravening the provisions of the Prevention of Corruption Act, 1988. The contents of Section 7 of the Act of 1988, as it stood on the date of the alleged incident has already been referred to in the preceding paragraphs.

19. The learned Senior Counsel for the appellant had placed reliance on A. Karunanithi vs The State, reported in 2025 INSC 967, wherein the Apex Court had held as follows:

                   “14. A Constitution Bench of this Court in Neeraj Datta vs State (NCT of Delhi), (2023) 4 SCC 731 has held that for recording a conviction under Section 7 and Sections 13 (1)(d)(i) and (ii) of the Act, the prosecution has to prove the demand and acceptance of illegal gratification either by direct evidence which can be in the nature of oral evidence or documentary evidence or circumstantial evidence. In other words, to convict a person under the aforesaid provision demand and acceptance of illegal gratification is a sine qua non.”

20. The learned senior counsel has, thereafter, referred to the judgment of the Apex Court in V. Sejappa vs State; reported in (2016) 12 SCC 150, wherein the Apex Court held as follows:

                   “18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act.

                   19. After referring to Surajmal v. State (Delhi Administration) (1979) 4 SCC 725, in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779, it was held as under:-

                   “18. In Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725, this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.”

                   In State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450, it was held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corroboration of the testimony of the complainant regarding the demand of bribe.

                   20. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to following observation in Mukut Bihari and Anr. v. State of Rajasthan (2012) 11 SCC 642, wherein it was held as under:-

                   “11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person.”

21. The case of A. Karunanithi (supra) was relied upon to support the case of the appellant that in the absence of proof of demand, the charge would fail, while reliance on the case of V. Sejappa (supra) was pressed into service to negate submission of the learned APP that recovery of the tainted money would be standard proof of demand and acceptance.

22. An intensive perusal of the evidence of the complainant indicates that the complainant had met the accused on two occasions, first when the accused told him to come back after a few days since “sir” was on leave, and the second time when he offered the money by placing it on the table of the accused. While on the first occasion, there was no reference to demand for bribe, on the second occasion, as per the version of the complainant, the accused had asked for what purpose was the amount paid. Thus, none of the above statements indicate that the accused had demanded a bribe.

23. The learned Trial Court has observed that in the cases relied upon by the learned counsel for the defense during the Trial did not aid the accused, inasmuch as, the cases cited, namely CBI Vs Purnandu Biswas reported in (2005) 12 SCC 576, Banarasi Dass vs State of Haryana, reported in (2010) 4 SCC 450, State of Punjab vs Sohan Singh reported in (2009) 6 SCC 444 and Khilli Ram Vs State of Rajasthan had dealt with offences charged under Section 13(1)(d) of the PC Act, 1988 or under section 5(1)(d) of the PC Act, 1947 and the case against the accused in this case was registered under Section 7 of the PC Act, 1988. The learned Trial Court held that the ingredients of Section13(1) (d) of the PC Act, 1988 or under section 5(1)(d) of the PC Act, 1947 differed from the ingredients of Section 7 of the PC Act, 1988.

24. The present case is one where there is an allegation that the accused had accepted the bribe offered to him, however, there are also allegations that prior to the acceptance, a demand had been made by the accused. In fact, the very point for determination framed by the learned Trial court was whether the accused had demanded and received a bribe? To bring home the charge of demand and receipt, the learned Trial Court had held that the term “the official”, used by the PW 6, referred to the accused herein and therefore, formed a presumption of demand. This Court cannot but disagree to such an inference. PW 6 had in his cross examination categorically stated that no demand had been made by the accused. The evidence of PW 6 would also show that he had put the money on the table and the accused had taken it in his hand and asked what was it for? This Court cannot bring itself to be convinced that such an action can be construed as an acceptance or receipt of illegal gratification.

25. In the present case, I am of the unhesitant view that the demand for bribe had not been proved by the prosecution, moreso, when there is no evidence to show that the accused had any idea why the tainted money was placed on his table by the complainant.

26. It would not be out of place to refer to the judgement of the Apex Court passed in Neeraj Datta vs State, reported in (2023) 4 SCC 731, where it has been held as follows:

                   68. What emerges from the aforesaid discussion is summarised as under: (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.

                   (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 inturn 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.

                   (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.

27. In the case at hand, there is an allegation as of a demand asserted in the complaint filed, therefore, it is not a case of offer and receipt. In the considered opinion of the Court, since a demand was alleged, the demand was required to be proved. The same having not been done, the conviction and sentencing as imposed by the Learned Trial Court cannot stand the scrutiny of law.

28. Resultantly, the appeal succeeds. The judgement dated 19.6.2014 passed by the Learned Special Judge, Assam in Special Case no 1/2010, is set at naught and the conviction and sentence awarded to the accused are interfered with and set aside. The accused/appellant is acquitted of the charges under Section 7 of the Prevention of Corruption Act, 1988. Bail bonds, if any, stand discharged.

29. Records of the Learned Trial Court be sent back along with a certified copy of this order.

30. Criminal Appeal is disposed of.