# Banshraj v. State of U.P

- **Citation:** (2023) 3 ILRA 694
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-16
- **Case number:** Criminal Appeal No. 1057 of 2015
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/banshraj-v-state-of-u-p-49917
- **Pages:** 14

## Headnote

Law-
The
Prevention
of
Corruption Act, 1988-Sections 7, 13(1)(d),
13(2), & Sec 20 - Evidence Act, 1872Section 3- Accused-Appellant demanded
bribe-amount for preparing the TCR and
making payment of the work doneConviction U/s 7 and 13(2) r/w Section 13
(i) (d) P.C Act-Complainant in his evidence
fully proved the demand- Evidence of
independent
shadow
witness
fully
corroborated
the
testimony
of
the
complainant-Recovery
of
the
taintedmoney from drawer of office-table of the
accused-appellant creates no doubt- Other
evidence, such as wash of hand and cloth
turning pink also support the recovery of
the "tainted" money-Accused refused to
give his voice sample-Chain of events
points out towards the guilt of the
accused- 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.

Appeal dismissed. (E-15)
3 All. Banshraj Vs. State of U.P.
695
List of Cases cited:

## Text

_Characters 0–39,962 of 47,374. This is a partial read: ask again with offset=39962 for what follows._

694 INDIAN LAW REPORTS ALLAHABAD SERIES
and she was recovered from the possession
of accused Rajendra Prasad @ Gappu on
10.06.1992. Recovery memo is signed by
accused as well as witnesses, delay is explained,
the age of the victim is specifically mentioned
in F.I.R. by way of date of birth as well as in the
statement of the complainant. The victim is
proved minor and her consent has no effect.
Moreover, the consent of the victim could not
be presumed in favour of the accused. Consent
is to be proved by the accused appellant by
clear evidence.

40. All the factum have been discussed
and dealt by the trial court in its judgment.
There is no ambiguity and illegality in the
judgment of the trial court and the judgment of
the trial court is liable to be confirmed and the
appeal is liable to be dismissed.

41. So far as the punishment is concerned,
learned trial court has considered the young age
of the appellant at the time of passing the order
and passed seven years' rigorous imprisonment
under Section 376 I.P.C., which is bare
minimum punishment prescribed in the case.
Learned counsel for the appellant could not
show any circumstances to mitigate the
sentence awarded by the trial court, therefore,
the punishment awarded by trial court is also
confirmed.

42. The appeal is dismissed. The accused
is on bail, he shall surrender before the C.J.M
concerned within one month from the date of
judgment and shall be sent to jail and serve out
the punishment awarded by the trial court.

43. Personal Bond and bail bonds of the
accused are cancelled.

44. Let certified copy of this
judgment alongwith lower court record be
sent to the trial court concerned for
necessary information and compliance.
----------
(2023) 3 ILRA 694
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.03.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Appeal No. 1057 of 2015

Banshraj ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Purnendu Chakravarty, Ramesh Chandra
Pathak

Counsel for the Respondent:
Bireshawr Nath, Shiv P. Shukla

Criminal
Law-
The
Prevention
of
Corruption Act, 1988-Sections 7, 13(1)(d),
13(2), & Sec 20 - Evidence Act, 1872Section 3- Accused-Appellant demanded
bribe-amount for preparing the TCR and
making payment of the work doneConviction U/s 7 and 13(2) r/w Section 13
(i) (d) P.C Act-Complainant in his evidence
fully proved the demand- Evidence of
independent
shadow
witness
fully
corroborated
the
testimony
of
the
complainant-Recovery
of
the
taintedmoney from drawer of office-table of the
accused-appellant creates no doubt- Other
evidence, such as wash of hand and cloth
turning pink also support the recovery of
the "tainted" money-Accused refused to
give his voice sample-Chain of events
points out towards the guilt of the
accused- 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.

Appeal dismissed. (E-15)
3 All. Banshraj Vs. State of U.P.
695
List of Cases cited:

1. Neeraj Dutta Vs St. (Govt. of N.C.T. of
Delhi2022 SCC OnLine SC 1724
2. K. Shanthamma Vs St. of Telangana(2022) 4
SCC 574
3. M.K. Harshan Vs St. of Kerala(1996) 11 SCC
720
4. C.M. Girish Babu Vs CBI, Cichin, High Court of
Kerala (2009) 3 SCC 779
5. Surajmal Vs St. (Delhi Administration (1979)
4 SCC 725
6. M. Narsinga Rao Vs St. of A.P )(2001) 1 SCC
691
7. St. of Mah.Vs DnyaneshwarLaxman Rao
Wankhede (2009) 15 SCC 200
(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present criminal appeal under
Section 374(2) CrPC has been filed against
the judgment and order dated 31.08.2015
passed by the learned Special Judge, CBI,
Court No. 4, Lucknow in Criminal Case
No.01 of 2011 (Computerized No.1600001
of 2011) (State through Central Bureau of
Investigation, Lucknow Vs. Banshraj),
arising
out
of
R.
C.
No.
0062011A0001/2011, under Sections 7 and
13(2) read with Section 13(i)(d) Prevention
of Corruption Act, 1988, (hereinafter
referred to as the "PC Act, 1988") Police
Station C.B.I./A.C.B., Lucknow by means
of which the accused-appellant has been
convicted and sentenced as follows:-

i. U/s 7 PC Act, 1988 three years
rigorous
imprisonment
and
fine
of
Rs.30,000/- and, in case of default in
deposition of the fine amount, six months
additional rigorous imprisonment; and

ii. U/s 13(2) read with Section
13(i)(d) PC Act, 1988 four years rigorous
imprisonment and fine of Rs. 40,000/- and
in case of default in deposition of the fine
amount, one year's additional rigorous
imprisonment.

It has also been directed that both
the sentences would run concurrently and
the period spent in jail shall be adjusted in
the sentence awarded.

2. Prosecution case, in FIR, was that
accused-appellant, Banshraj, who was
posted as Senior Executive Engineer
(Electrical & Mechanical ) (hereinafter
referred to as the "E&M), Kakari Project,
National Coal Limited, Sonbhadra, Uttar
Pradesh (hereinafter referred to as the
"NCL") used to harass complainant, R.K.
Mittal by asking for bribe for the work of
dismantling and creating HT overhead line.

3. The tender was floated when
required at mines in the area of the Kakari
Project. The Technical Committee Member
was Mr. P. Rai, Chief Engineer (Mines),
but in his absence, the accused-appellant,
being the Senior Executive Engineer
(E&M), acted as Technical Committee
Member.
The
Tender
Committee
Recommendations (hereinafter referred to
as the "TCR") were made by the accusedappellant.

4. Complainant, R.K. Mittal was L-1.
The accused-appellant allegedly asked the
complainant to bring Rs. 2,600/- otherwise,
he
would
disturb
working
of
the
complainant.
The
accused-appellant
allegedly also told the complainant that his
Rs.7,000/- was balance for the previous
TCR and asked the complainant to bring
the previous balance amount of Rs. 7,000/-
as well.
696 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The complainant gave a complaint
to the CBI/ACB on 13.01.2011 in respect
of the said demand of bribe by the accusedappellant.

6. After verifying the complaint, the
case was registered by the CBI. During pretrap
and
post-trap
proceedings,
the
accused-appellant
was
arrested
on
18.01.2011, at around 2 p.m., demanding
and
accepting
Rs.9,600/-
from
the
complainant, which was for making TCR in
favour of the complainant and Rs. 20,000/-
in respect of the payment made against the
bills for the work done by the complainant.

7. After completing investigation,
charge-sheet was filed against the accusedappellant under Section 7 and Section 13
(2) read with Section 13(i) (d) PC Act,
1988. The cognizance was taken on the
said charge-sheet on 06.05.2011 by the
learned trial Court and accused-appellant
was summoned to face trial.

8. Charge was framed on 08.07.2011
for the offence under Section 7 read with
Sections 13(2) and 13(i)(d) PC Act, 1988.

9. The accused-appellant denied the
charge and claimed trial.

10. The prosecution, to prove its case,
examined 9 witnesses and proved 20
documents.

11. The accused-appellant, in his
defence, examined 5 witnesses.

12. Statement of the accusedappellant was recorded under Section 313
CrPC wherein he had said that the sanction
for his prosecution was given without
application of mind and, denied that he
demanded and accepted any bribe from the
complainant. He had also said that pre-trap
and post-trap proceedings were illegal and
denied the evidence brought on record by
the prosecution. He also said that the CBI,
after arresting him, got his signatures on
post-trap memo (Exhibit Ka-3) and other
documents. In respect of recovery of the
bribe amount of Rs. 29,600/- from him, the
accused-appellant said that it was wrong
and when he was going to take lunch by his
jeep then the complainant, who met him on
the way, said that "I had kept in the drawer
sir". Later on, he could realize that the
complainant had planted the money and, he
was arrested by the CBI after getting off
the jeep. No money was recovered from
him. After his arrest, signatures of the
witnesses were obtained on papers. He
denied his signatures on post-trap memo,
D-6 (Exhibit Ka-4). The accused-appellant
also denied the recovery of the bribe
amount from drawer of his office-table by
Ram Narain Duble (PW-4) and, also denied
the solution turned pink after dipping his
fingers. He denied Exhibits Ka-2 to Ka-6
and material exhibits (ME-1 to ME-10).
The
accused-appellant
denied
the
Memorandum
D-12
(Exhibit
Ka-20)
prepared by Pramod Kumar Singh, PW-3.
He said that neither voice recorder of pretrap and post-trap was produced nor proved
in the Court. Neither the TLO nor the CBI
had submitted any certificate under Section
65-B of the Evidence Act in respect of the
electronic evidence.

13. In his defence, the accusedappellant produced documents and proved
the same.

14. Learned trial Court, after
analyzing the evidence in detail found the
charge proved and held the accusedappellant guilty for the offence under
Section 7 read with Sections 13(2) and
3 All. Banshraj Vs. State of U.P.
697
13(i)(d) PC Act, 1988 and convicted and
sentenced him, as mentioned above.

15. On behalf of the accusedappellant, Mr. Purnendu Chakravarti has
submitted that the prosecution has failed to
prove the demand, acceptance and recovery
of the bribe amount from the accusedapplicant; it is sine-qua-none to hold an
accused guilty for the offence under
Section 7 and Section 13(2) read with
13(i)(d) PC Act,1988 to prove the demand,
acceptance and recovery of the bribe
amount from the accused; the accusedappellant was not in a position to favour the
complainant; PW-5, Vasudeo Adya, who
was posted as Deputy General Manager
(Finance) at NCL Kakari Project, had
explained the entire procedure for work
contract and, its execution at NCL; PW-5,
in his evidence, said that the bills of the
complainant, the contractor, was signed on
10.12.2010; Jag Mohan, Fitment In-charge,
checked the bills and signed the same; after
processing the bills by Jag Mohan, the
accused-appellant,
having
supervisory
capacity, also checked and signed the bills
on 10.12.2010; this PW-5 had proved the
Document No. 15 (Work Order allotted to
the complainant) and Document No. 14
(Bills submitted by the complainant).

16. On behalf of the accusedapplicant,
Mr.
Chakravarti,
learned
counsel, has further submitted that D. N.
Mandal, DW-2, posted in NCL Kakari
Project had proved Document No.A94/4 to
A94/25. These documents are in respect of
TCR and credentials of M/s Vimal
Electrical
Works,
the
proprietorship
concern of the complainant. This witness
has proved the duty-chart, TCR and
credentials, submission of the work order
and bills for verification, cancellation and
show-cause-notices to M/s Vimal Electrical
Works for obtaining work order on the
basis of forged documents, debarring and
blacklisting of M/s Vimal Electrical Works
from getting tender of NCL. DW-3, Ram
Niwas Sharma, posted at NCL Kakari
Project, in his statement recorded on
13.04.2015, proved the document A94/12
(Exhibit Kha-12, which is order of
blacklisting of M/s Vimal Electrical Works.
This defence witness had also said that he
was
present
on
the
site-office
on
18.01.2011 and he, along with the accusedappellant, left for taking lunch at 2 p.m.
from
the
site-office.
The
site-office
remained open 24 hours. The accusedappellant went to his jeep and he,
accompanied him, towards this witness's
motorcycle. The complainant went inside
the site-office and came out within five
minutes. He had call on his mobile.
Thereafter, the complainant came towards
the accused-appellant and started talking to
him. In the meantime, the CBI officials also
arrived and took the accused-appellant to
site-office.
The
said
witness
had
specifically
denied
any
demand
and
acceptance of any bribe-amount made by
the
accused-appellant
from
the
complainant.

17. Mr. Chakravarti has drawn
attention of this Court to the evidence of
Suresh Singh, DW-4, posted at NCL
Kakari Project. He was also PW-10 in the
list of witnesses filed by the CBI along
with the charge-sheet. However, the CBI
did not examine the said witness. The said
defence witness had explained the events in
chronological order which took place on
18.01.2011. He had said that DW-3, Ram
Niwas Sharma was present with the
accused-appellant outside the site-office
during lunch hour. Presence of this witness
was testified from the attendance-sheet
(Paper No. A94/2). DW-5, Lalji, who was
698 INDIAN LAW REPORTS ALLAHABAD SERIES
driver at NCL Kakari Project, also
explained
chronological
events
of
18.01.2011. This witness was in the list of
prosecution witnesses at serial no. 8 in the
charge-sheet, but he was also not examined
by the CBI. This witness, in his deposition,
had said that on 18.01.2011 he was taking
the accused-appellant in the government
vehicle for lunch at 2 p.m. to his residence.
When the vehicle had moved 14-15 meters
then the complainant, along with another
person, came there and parked the
motorcycle in front of the jeep, and started
talking to the accused-appellant and said
that "sir I have kept in the drawer'. At that
time, 4-5 other persons came there and the
accused-appellant was taken off the jeep
and taken to the site-office. Later on, he
could know that these 4-5 persons were
from CBI. He denied to have recorded his
statement recorded under Section 161 CrPC
during investigation. He also said that the
CBI had never called him in office of the
General Manager for investigation or
recorded his statement. He said that only
once, he was called in office of the General
Manager for identifying the voice. When
the voice was played in laptop then this
witness told that the voice was not clear
and, therefore, he was not in a position to
identify the same. He said that though he
was working with the accused-appellant,
but he could not recognize the voice of the
accused-appellant.

18. On behalf of the accusedappellant, Mr. Chakravarti has further
submitted
that
there
is
material
contradictions in the evidence of PW-2 and
PW-4, shadow-witness, Ram Narain Duble.
PW-2, in his examination, had deposed that
he had kept the bribe-amount himself, as
directed by the accused-appellant, in the
drawer of office-table of the accusedappellant. The accused-appellant closed the
drawer of the table from his right-hand.
However, PW-4, shadow-witness, in his
examination, said that when the accusedappellant was arrested, he came to the siteoffice and found diary inside the drawer of
the office-table and the bribe-amount was
kept on the diary and drawer of the table
was half-opened. Mr. Chakravarti has also
submitted that the accused-appellant was
intercepted by the CBI, while he was going
to have lunch by his official vehicle.
Spontaneous reaction was "maine koi paise
nahi liya hai". This spontaneous statement
cannot be said to be an afterthought, rather
it would show innocence. The manner, in
which the car was topped, would create a
grave
suspicion
on
conduct
of
the
complainant. If the accused-appellant had
accepted
the
bribe-amount
from
the
complainant then why he would leave the
bribe-amount in the drawer that was halfopened, while he was going for lunch. He
has,
therefore,
submitted
that
the
prosecution has failed to prove the case
beyond reasonable doubt against the
accused-appellant. The conduct of the
complainant had not been considered by
the trial Court.

19. On the other hand, Mr. Shiv P.
Shukla, learned counsel for the respondent
- CBI, has submitted that the prosecution
has proved the case against the accusedappellant beyond reasonable doubt by
leading cogent and credible evidence. It has
been further submitted that the demand,
acceptance and recovery are fully proved in
the present case. Minor contradictions, in
the testimony of the witnesses, are
embellishment and not material to destroy
the present case. The trial Court has
considered each & every evidence in detail
while convicting the accused-appellant.
The prosecution has proved the case
beyond reasonable doubt and the judgment
3 All. Banshraj Vs. State of U.P.
699
and & order appealed does not suffer from
any illegality or perversity, either in
appreciation of evidence or in law and,
therefore, the appeal, having no merit and
substance, is liable to be dismissed.

20. The question, which falls for
consideration in this appeal, is that whether
the prosecution has been able to prove the
demand and acceptance of the bribeamount
by
the
accused-appellant.
Provisions of Sections 7, 13(i)(d) and 13(2)
of the PC Act, 1988 which are relevant, are
extracted hereunder:-

"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 1[three years] but which
may extend to 2[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, be 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.

"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
700 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) while holding office as a
public servant, obtains for any person any
valuable thing or pecuniary advantage
without any public interest.

(e).................

Explanation.--For the purposes of
this section, "known sources of income"
means income received from any lawful
source and such receipt has been intimated
in accordance with the provisions of any
law, rules or orders for the time being
applicable to a public servant.

(2) Any public servant who
commits criminal misconduct shall be
punishable with imprisonment for a term
which shall be not less than 3[four years]
but which may extend to 4[ten years] and
shall also be liable to fine."

21. Section 20 PC Act, 1988 reads as
under:-

"20. Presumption where public
servant accepts any undue advantage.--
Where, in any trial of an offence
punishable under section 7 or under
section 11, it is proved that a public servant
accused of an offence has accepted or
obtained or attempted to obtain for himself,
or for any other person, any undue
advantage from any person, it shall be
presumed, unless the contrary is proved,
that he accepted or obtained or attempted
to obtain that undue advantage, as a motive
or reward under section 7 for performing
or to cause performance of a public duty
improperly or dishonestly either by himself
or by another public servant or, as the case
may be, any undue advantage without
consideration or for a consideration which
he knows to be inadequate under section
11."

22. Plain words of the Statue would
meant that if it can be proved that a public
servant has received illegal gratification,
Section 20 PC Act,1988 brings a statutory
presumption that he has received the same
with an illegal motive as laid down in
Section 7 PC Act, 1988. This shifts burden
of proof upon the accused. He has to
discharge the burden that what has been
received is for a valuable consideration and
not for illegal gratification. The Statute
does not provide for 'demand' of illegal
gratification to constitute an offence under
the PC Act, 1988. It has virtually been
inserted into the Statute by the Supreme
Court by an interpretative process. 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.

23. Corruption by a public servant is
an offence against the State and the society
at large. The Supreme Court in 2022 SCC
OnLine SC 1724 (Neeraj Dutta Vs. State
(Govt. of N.C.T. of Delhi) has answered
the reference that "whether circumstantial
evidence can be used to prove demand of
illegal gratification". In the said case, the
Constitution Bench has held that In the
absence of evidence of the complainant
(direct/primary,
oral/documentary
evidence), it is permissible to draw an
inferential deduction of culpability/guilt of
a public servant under Section 7 and
Section 13(1)(d) read with Section 13(2) of
the Act based on other evidence adduced
by the prosecution. Paragraph-7 of the said
judgment would read as under:-

"7. It was further observed with
reference to Ram Krishan v. state of Delhi,
AIR 1956 SC 476 ("Ram Krishan"), that for
3 All. Banshraj Vs. State of U.P.
701
the purpose of Section 13(1)(a) and (b) of
the Act:

"It is enough if by abusing his
position as a public servant a man obtains
for himself any pecuniary advantage,
entirely irrespective of motive or reward
for showing favour or disfavour."

24. In the event of complainant turns
hostile, or dies or is unable to give his
evidence during trial, the demand of illegal
gratification can be proved by leading
evidence of any other witness, who can
again
lead
any
evidence,
oral
or
documentary, or prosecution can prove the
case by circumstantial evidence. In such a
situation, the trial does not abate nor it
would result in an order of acquittal of the
accused-public servant. The Supreme Court
has held in several judgments that offer of
the bribe and demand by the public servant
have to be proved by the prosecution as a
fact in issue. 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. The proof of
demand of bribe by public servant and its
acceptance by him is sine-qua-none for
establishing the offence under Section 7 PC
Act, 1988. The failure of the prosecution to
prove the demand or illegal gratification
would be fatal and mere recovery of the
amount from the accused would not
constitute an offence under Section 7 or 13
PC Act, 1988 and it would not entail his
conviction thereunder as held in (2022) 4
SCC 574 (K. Shanthamma Vs. State of
Telangana).

25. The accused-appellant was posted
as Manager (E&M) at NCL Kakari Project,
Sonbhadra. The complainant, PW-2 was a
contractor in the NCL. He used to take
electric contract. Allegedly, the accusedappellant would demand bribe-amount for
preparing the TCR and making payment of
the work done. PW-2, the complainant, in
his evidence, has fully proved the demand
of Rs. 2,600/- made by the accusedappellant, which is 1% of the current TCR
i.e. Rs.2,67,270/- and Rs.7,000/- in respect
of some old TCR and Rs. 20,000/- for the
payment made to the complainant for the
work done by him. The complainant had
withdrawn this amount from his two bankaccounts which fact got proved. The
accused-appellant on 18.01.2011, when the
complainant reached to office along with
shadow witness, Jai Kumar Bansal (PW-7),
enquired from the complainant (PW-2)
whether the complainant had brought the
money, then the complainant said ''yes' and
on asking by the accused-appellant, he kept
Rs. 29,600/-, the bribe-amount, in the
drawer of the office-table of the accusedappellant. Evidence of this independent
shadow witness had fully corroborated the
testimony of the complainant. The recovery
of the bribe-amount from drawer of officetable of the accused-appellant creates no
doubt. The bribe-amount was recovered by
Ram Narain Duble. The other evidence,
such as wash of hand and cloth turning
pink, also fully support the recovery of the
tainted money from the drawer of officetable of the accused-appellant, which was
under his control.

26. The accused-appellant refused to
give his voice sample for matching the
voice recorded in the voice-recorder, which
was kept in the pocket of the complainant,
PW-2. When the CD was played, the
complainant, PW-2 completely recognized
his voice and voice of the accusedappellant demanding the bribe-amount. The
testimonies of PW-2, PW-4 and PW-7,
regarding demand and acceptance of the
bribe-amount,
had
remained
intact.
702 INDIAN LAW REPORTS ALLAHABAD SERIES
Whether the drawer was completely closed
or half opened, would not make much of
difference to brings home the charge
against the accused-appellant. This Court
cannot substitute its reasoning for not
taking
the
bribe-amount
home
after
receiving the same from the complainant,
PW-2. Why the accused-appellant did not
take the bribe-amount home, it was for him
to decide, and the Court absolutely cannot
presume the reasoning for such an action
by the accused-appellant. However, since
the accused-appellant did not take the
bribe-amount home that would not falsify
the evidence of the complainant and the
independent
witnesses,
including
the
recovery witness.

27. The conviction of an accused
cannot be founded on the basis of
inference, but the prosecution has to prove
the
offence
against
accused
beyond
reasonable doubt by leading cogent and
credible evidence. In the present case, each
link of chain of events points out towards
the guilt of the accused-appellant by
evidence led in that regard by the
prosecution which satisfies that the chain
was complete. The Supreme Court in
(1996) 11 SCC 720 (M.K. Harshan Vs.
State of Kerala) in somewhat similar
circumstances, where the tainted money
was kept in the drawer of the accused, who
denied the same and said that it was put in
the drawer without his knowledge in
paragraph-8 has held as under:-

". The plea of the accused is that
he was not in the office prior to 4 p.m. and
he only entered the office at about 4 p.m.
and when he was in his seat, the trap party
entered his office and which plea is fairly
suggestive that without his knowledge the
tainted money must have been put in the
drawer of his table. We find some anxiety
and an attempt was there on the part of the
DSP as well as the other trap witnesses to
show that the accused had handled the
notes either before they were put into the
drawer or thereafter thereby trying to
connect him directly with the receipt of the
tainted money. Whereas the plea of the
accused is that the same has been put in his
drawer without his knowledge. PW 1, as
mentioned above, deposed that PW 11
asked the accused to touch the currency
notes and thereafter his fingers were
dipped into the liquid which turned pink. It
is significant that PW 8, another Vigilance
Officer, who was in the company of PW 11
throughout,
deposed
that
after
the
necessary signals were given, the trap
party proceeded. PW 1 came out, met them
and told that the accused had accepted the
money and that he had put it in the left top
drawer of the table and hearing this the
trap party entered the room of the accused.
His evidence suggests that PW 1 told him
that the accused accepted the money and he
himself put the money in the left top drawer
of the table. PW 11 also deposed that PW 1
came out and told them that he has given
the currency notes to the accused as
bribery and it was kept in the left drawer
and thereafter the trap party entered the
office. These two witnesses also deposed
that the accused was asked to dip his right
hand in the liquid in the glass and when he
did so it became pink in colour. Therefore,
according to their versions, as informed by
PW 1, the accused himself received the
amount and put the same in the drawer and
consequently when he dipped his fingers
the solution became pink. But the positive
case of the prosecution on the other hand
as narrated by PW 1 is that the accused
never touched the currency notes and it
was he who put them in the table drawer. It
may be noted that PW 3, a constable, was
sent along with PW 1. He was asked to wait
3 All. Banshraj Vs. State of U.P.
703
outside and relay the signal. PW 11
admitted in the cross-examination that PW
3 could see what was happening in the
office of the accused, but PW 3 does not
say anything about having seen anything
happening in the office of the accused. He
does not even say that when PW 1 went
inside with the money, he saw the accused
in his seat. In the light of these conflicting
versions and suspicious features on this
crucial aspect, the plea of the accused
that the notes were put in the drawer
without his knowledge, does not appear
to be improbable. In any event, PW 1's
evidence for the above said reasons, does
not appear to be wholly reliable. It is in
this context the courts have cautioned
that as a rule of prudence, some
corroboration is necessary. In all such
type of cases of bribery, two aspects are
important. Firstly, there must be a
demand and secondly there must be
acceptance in the sense that the accused
has obtained the illegal gratification.
Mere demand by itself is not sufficient to
establish the offence. Therefore, the other
aspect,
namely,
acceptance
is
very
important and when the accused has
come forward with a plea that the
currency notes were put in the drawer
without his knowledge, then there must be
clinching evidence to show that it was
with the tacit approval of the accused
that the money had been put in the
drawer
as
an
illegal
gratification.
Unfortunately, on this aspect in the
present case we have no other evidence
except that of PW 1. Since PW 1's
evidence suffers from infirmities, we
sought to find some corroboration but in
vain. There is no other witness or any
other circumstance which supports the
evidence of PW 1 that this tainted money
as a bribe was put in the drawer, as
directed by the accused. Unless we are
satisfied on this aspect, it is difficult to
hold that the accused tacitly accepted the
illegal gratification or obtained the same
within the meaning of Section 5(1)(d) of
the Act, particularly when the version of
the accused appears to be probable."

28. Here the evidence of PW-2 and
PW-4 would suggest that the accusedappellant demanded the bribe-amount and
he accepted by asking the complainant to
keep it in the drawer of the office-table
which
the
accused-appellant
himself
opened and, therefore, it is not mere
demand, but also acceptance of the bribeamount by asking the complainant to put
the same in the drawer. The evidence of
PW-2 does not suffer from any infirmity in
this regard.

29. In (2009) 3 SCC 779 (C.M. Girish
Babu Vs. CBI, Cichin, High Court of
Kerala) the Supreme Court has held that
mere recovery of money from the accused
itself is not enough in absence of
substantive evidence for demanding and
accepting the money. The Supreme Court
has held that there was no voluntary
acceptance of the money, knowing it to be
bribe. The Supreme Court, after analyzing
the evidence on record, in paragraphs 18,
19 and 20 of the said judgment has held as
under:-

"18. In Suraj Mal v. State (Delhi
Admn.) [(1979) 4 SCC 725 : 1980 SCC
(Cri) 159] 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
704 INDIAN LAW REPORTS ALLAHABAD SERIES
to prove payment of bribe or to show that
the accused voluntarily accepted the money
knowing it to be bribe.

19. The learned counsel for CBI
submitted that the onus of proof was upon
the appellant to explain as to how he came
into possession of the amount recovered
from him during the trap. The argument of
the learned counsel is obviously based on
Section 20 of the Prevention of Corruption
Act, 1988 which reads as under:

"20. Presumption where public
servant accepts gratification other than
legal remuneration.--(1) Where, in any trial
of an offence punishable under Section 7 or
Section 11 or clause (a) or clause (b) of
sub-section (1) of Section 13 it is proved
that an accused person has accepted or
obtained or has agreed to accept or
attempted to obtain for himself, or for any
other person, any gratification (other than
legal remuneration) or any valuable thing
from any person, it shall be presumed,
unless the contrary is proved, that he
accepted or obtained or agreed to accept
or attempted to obtain that gratification or
that valuable thing, as the case may be, as
a motive or reward such as is mentioned in
Section 7 or, as the case may be, without
consideration or for a consideration which
he knows to be inadequate.

(2) Where in any trial of an
offence punishable under Section 12 or
under clause (b) of Section 14, it is proved
that any gratification (other than legal
remuneration) or any valuable thing has
been given or offered to be given or
attempted to be given by an accused
person, it shall be presumed, unless the
contrary is proved, that he gave or offered
to
give
or
attempted
to
give
that
gratification or that valuable thing, as the
case may be, as a motive or reward such as
is mentioned in Section 7, or, as the case
may be, without consideration or for a
consideration which he knows to be
inadequate.

(3)
Notwithstanding
anything
contained in sub-sections (1) and (2), the
court may decline to draw the presumption
referred to in either of the said subsections, if the gratification or thing
aforesaid is, in its opinion, so trivial that
no inference of corruption may fairly be
drawn."

20. A three-Judge Bench in M.
Narsinga Rao v. State of A.P. [(2001) 1
SCC 691 : 2001 SCC (Cri) 258] while
dealing with the contention that it is not
enough that some currency notes were
handed over to the public servant to make
it
acceptance
of
gratification
and
prosecution has a further duty to prove that
what was paid amounted to gratification,
observed: (SCC p. 700, para 24)

"24. ... we think it is not
necessary to deal with the matter in detail
because in a recent decision rendered by us
the said aspect has been dealt with at
length. (Vide Madhukar Bhaskarrao Joshi
v. State of Maharashtra [(2000) 8 SCC 571
: 2001 SCC (Cri) 34] .) The following
statement made by us in the said decision
would be the answer to the aforesaid
contention raised by the learned counsel:
(Madhukar case [(2000) 8 SCC 571 : 2001
SCC (Cri) 34] , SCC p. 577, para 12)

''12.
The
premise
to
be
established on the facts for drawing the
presumption is that there was payment or
acceptance of gratification. Once the said
premise is established the inference to be
drawn is that the said gratification was
accepted "as motive or reward" for doing
or forbearing to do any official act. So the
word "gratification" need not be stretched
to mean reward because reward is the
outcome of the presumption which the
court has to draw on the factual premise
that there was payment of gratification.
3 All. Banshraj Vs. State of U.P.
705
This will again be fortified by looking at
the collocation of two expressions adjacent
to each other like "gratification or any
valuable thing". If acceptance of any
valuable thing can help to draw the
presumption that it was accepted as motive
or reward for doing or forbearing to do an
official act, the word "gratification" must
be treated in the context to mean any
payment for giving satisfaction to the
public servant who received it."

30. The said principle is not new one,
but a reiteration of the principle enunciated
by the Supreme Court in (1979) 4 SCC 725
(Surajmal
Vs.
State
(Delhi
Administration).

31. In (2001) 1 SCC 691 (M.
Narsinga Rao Vs. State of A.P.), while
dealing with sub-section 1 of Section 20 PC
Act, 1988 in respect of presumption where
the public servant accepts gratification
other
than
legal
remuneration,
in
paragraphs 14, 15, 16, 17, 18 and 19 it has
has held as under:-

"14. When the sub-section deals
with legal presumption it is to be
understood as in terrorem i.e. in tone of a
command that it has to be presumed that
the accused accepted the gratification as a
motive or reward for doing or forbearing to
do any official act etc., if the condition
envisaged in the former part of the section
is satisfied. The only condition for drawing
such a legal presumption under Section 20
is that during trial it should be proved that
the accused has accepted or agreed to
accept any gratification. The section does
not say that the said condition should be
satisfied through direct evidence. Its only
requirement is that it must be proved that
the accused has accepted or agreed to
accept gratification. Direct evidence is one
of the modes through which a fact can be
proved. But that is not the only mode
envisaged in the Evidence Act.

15. The word "proof" need be
understood in the sense in which it is
defined in the Evidence Act because proof
depends upon the admissibility of evidence.
A fact is said to be proved when, after
considering the matters before it, the court
either believes it to exist, or considers its
existence so probable that a prudent man
ought, under the circumstances of the
particular case, to act upon the supposition
that it exists. This is the definition given for
the word "proved" in the Evidence Act.
What is required is production of such
materials
on
which
the
court
can
reasonably act to reach the supposition
that a fact exists. Proof of the fact depends
upon the degree of probability of its having
existed. The standard required for reaching
the supposition is that of a prudent man
acting in any important matter concerning
him. Fletcher Moulton L.J. in Hawkins v.
Powells Tillery Steam Coal Co.