# Mohd. Saleem Khan v. State of U.P

- **Citation:** (2025) 7 ILRA 954
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-01
- **Case number:** Criminal Appeal No. 465 of 2013
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-saleem-khan-v-state-of-u-p-53682
- **Pages:** 18

## Headnote

under Section 7 of the Prevention of
Corruption Act, 1988 could be sustained
when (i) the complainant turned wholly
hostile; (ii) the shadow witness did not
hear any demand; (iii) acceptance of
illegal gratification was not proved; (iv)
independent witnesses present were not
examined; and (v) defence witnesses
supported a case of false implication and
planting of money by the trap team.

Headnotes
Prevention of Corruption Act, 1988 - s.7;
ss.13(1)(d),
13(2);
s.20
-
Criminal
Procedure Code, 1973 - s.161; Evidence
Act,
1872
-
s.114(g)
-
Illegal
gratification - Demand and acceptance -
Complainant hostile - Shadow witness
not
hearing
demand
-
Independent
witnesses
not
examined
-
Defence
witnesses supporting planting - Adverse
presumption - Conviction unsustainable.

Held:

Demand of illegal gratification is sine qua non
for an offence under Section 7-mere recovery of
tainted money is insufficient-complainant (PW-1)
categorically denied demand or acceptanceasserted
that
CBI
officials
dictated
the
complaint- folded notes into the passbook-
instructed him to place it on the appellant's
table-denied handing over the money-evidence,
read as a whole, gave no support to the
prosecution. [Paras 52-57]

Defence witnesses (DW-5 and DW-7)- present
inside the cabin- consistently stated-money was
forcibly planted into appellant's pocket-trap
team
threatened
eyewitnesses-testimony
7 All. Mohd. Saleem Khan Vs. State of U.P.
955
remained unshaken in cross-examination-could
not be discarded merely for not complaining to
police. [Paras 60-61]

Statement
of
Jagdish
Singh
(DW-4)-
Investigating Officer had falsely attributed a
statement to him under Section 161 Cr.P.C.-
prosecution's withholding of this witness-attracts
adverse presumption under Section 114(g).
[Paras 62-65]

Foundational facts to invoke presumption under
Section 20 not proved- prosecution failed to
establish demand or voluntary acceptanceConviction under Section 7 unsustainableappellant entitled to acquittal. [Paras 45, 66-68]
(E-14)

Case Law Cited

B. Jayaraj v. State of A.P., (2014) 13 SCC
55 - applied; P. Satyanarayana Murthy v.
State of A.P., (2015) 10 SCC 152 -
applied; Neeraj Dutta v. State (NCT of
Delhi), (2023) 4 SCC 731 - relied on;
State of Maharashtra v. Dnyaneshwar
Laxman Rao Wankhede, (2009) 15 SCC
200 - applied; Hazari Lal v. State (Delhi
Admn.), (1980) 2 SCC 390 - considered;
M. Narsinga Rao v. State of A.P., (2001) 1
SCC 691 - distinguished; Vinod Kumar v.
State of Punjab, (2015) 3 SCC 220 -
referred to; State v. Sanjeev Nanda,
(2012) 8 SCC 450 - principles noted.

List of Acts / Statutes
Prevention of Corruption Act, 1988; Code of
Criminal Procedure, 1973; Indian Evidence Act,

## Text

_Characters 0–39,761 of 59,292. This is a partial read: ask again with offset=39761 for what follows._

954 INDIAN LAW REPORTS ALLAHABAD SERIES
shall run concurrently. The whole of
amount of fine (Rs.20,000/- in toto) shall
be
payable
to
the
informant
as
compensation.

72. With the aforesaid modification
the appeal qua conviction is dismissed.
However, the appeal qua sentence is partly
allowed and the sentence is modified to the
aforesaid
extent.
The
reference
for
confirmation of death sentence is hereby
dismissed.

73. The accused appellant is in jail, he
will undergo the remaining sentence in
accordance with law. Trial court record and
proceedings be sent back to the trial court
forthwith for necessary compliance and
onwards information to Superintendent of
concerned jail about this modified sentence
for necessary action.

74. While parting with the case, we
deeply appreciate the valuable assistance of
Senior Advocate Sri Vinay Saraan assisted
by Smt. Beena Mishra, learned Amicus
Curiae and also Sri Pradeep Kumar Mishra,
Advocate. We direct that an honorarium of
Rs.25,000/- shall be paid to Sri Vinay
Saran, Senior Advocate, and Rs.25,000/- to
Smt. Beena Mishra, as both of them have
been appointed as Amicus Curiae in the
case by High Court, Legal Services
Committee.
--------
(2025) 7 ILRA 954
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.07.2025

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Appeal No. 465 of 2013
Mohd. Saleem Khan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
P. Chakravarty, Pranjal Krishna

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

Issue for Consideration
Whether the conviction of the appellant
under Section 7 of the Prevention of
Corruption Act, 1988 could be sustained
when (i) the complainant turned wholly
hostile; (ii) the shadow witness did not
hear any demand; (iii) acceptance of
illegal gratification was not proved; (iv)
independent witnesses present were not
examined; and (v) defence witnesses
supported a case of false implication and
planting of money by the trap team.

Headnotes
Prevention of Corruption Act, 1988 - s.7;
ss.13(1)(d),
13(2);
s.20
-
Criminal
Procedure Code, 1973 - s.161; Evidence
Act,
1872
-
s.114(g)
-
Illegal
gratification - Demand and acceptance -
Complainant hostile - Shadow witness
not
hearing
demand
-
Independent
witnesses
not
examined
-
Defence
witnesses supporting planting - Adverse
presumption - Conviction unsustainable.

Held:

Demand of illegal gratification is sine qua non
for an offence under Section 7-mere recovery of
tainted money is insufficient-complainant (PW-1)
categorically denied demand or acceptanceasserted
that
CBI
officials
dictated
the
complaint- folded notes into the passbook-
instructed him to place it on the appellant's
table-denied handing over the money-evidence,
read as a whole, gave no support to the
prosecution. [Paras 52-57]

Defence witnesses (DW-5 and DW-7)- present
inside the cabin- consistently stated-money was
forcibly planted into appellant's pocket-trap
team
threatened
eyewitnesses-testimony
7 All. Mohd. Saleem Khan Vs. State of U.P.
955
remained unshaken in cross-examination-could
not be discarded merely for not complaining to
police. [Paras 60-61]

Statement
of
Jagdish
Singh
(DW-4)-
Investigating Officer had falsely attributed a
statement to him under Section 161 Cr.P.C.-
prosecution's withholding of this witness-attracts
adverse presumption under Section 114(g).
[Paras 62-65]

Foundational facts to invoke presumption under
Section 20 not proved- prosecution failed to
establish demand or voluntary acceptanceConviction under Section 7 unsustainableappellant entitled to acquittal. [Paras 45, 66-68]
(E-14)

Case Law Cited

B. Jayaraj v. State of A.P., (2014) 13 SCC
55 - applied; P. Satyanarayana Murthy v.
State of A.P., (2015) 10 SCC 152 -
applied; Neeraj Dutta v. State (NCT of
Delhi), (2023) 4 SCC 731 - relied on;
State of Maharashtra v. Dnyaneshwar
Laxman Rao Wankhede, (2009) 15 SCC
200 - applied; Hazari Lal v. State (Delhi
Admn.), (1980) 2 SCC 390 - considered;
M. Narsinga Rao v. State of A.P., (2001) 1
SCC 691 - distinguished; Vinod Kumar v.
State of Punjab, (2015) 3 SCC 220 -
referred to; State v. Sanjeev Nanda,
(2012) 8 SCC 450 - principles noted.

List of Acts / Statutes
Prevention of Corruption Act, 1988; Code of
Criminal Procedure, 1973; Indian Evidence Act,
1872.

List of Keywords
Illegal
gratification;
Demand
and
acceptance; Hostile complainant; Shadow
witness; Trap case; Recovery of tainted
money;
Foundational
facts;
Adverse
inference; False implication; Planting of
money;
Independent
witnesses
not
examined; Defence evidence; Acquittal.

Case Arising From
Impugned judgment dated 07.03.2013 of the
Special Judge, CBI Court No. 1, Lucknow, in
Criminal Case No. 2 of 2008 (RC No.
0062008A0016/2008), P.S. CBI/ACB, Lucknow.

Appearance for Parties

For the Appellant: Sri Nandit Srivastava,
Senior Advocate, Ms. Shahla Zubair, Sri Pranjal
Krishna, Sri P. Chakravarty.
For the Respondents: Sri Anurag Kumar
Singh, Bireshwar Nath, Shiv P. Shukla.

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Nandit Srivastava Senior
Advocate assisted by Ms. Shahla Zubair
and Sri Pranjal Krishna Advocates, the
learned counsel for the appellant and Sri
Anurag Kumar Singh, learned counsel for
the CBI.

2. The instant appeal has been filed
under Section 374(2) Criminal Procedure
Code, 1973 read with Section 27 of the
Prevention of Corruption Act, 1988 against
the judgment and order dated 07.03.2013
passed by the learned Special Judge, C.B.I.,
Court No. 1, Lucknow in Criminal Case
No. 2 of 2008 arising out of RC No.
0062008A0016/2008 under Sections 7 and
Section 13 (1) (d) read with Section 13 (2)
of the Prevention of Corruption Act, 1988,
Police Station C.B.I./A.C.B., Lucknow,
whereby the trial Court has convicted the
appellant for the offence under Section 7 of
the Prevention of Corruption Act, 1988 and
has sentenced him to undergo rigorous
imprisonment for a period of three years
and to pay Rs.15,000/- as fine. In case of
failure to pay fine, the appellant would
have to undergo rigorous imprisonment for
an additional period of six months. The
appellant has been acquitted of the offence
under Section 13 (2) read with Section 13
(1) (d) of the Prevention of Corruption Act,
1988.
956 INDIAN LAW REPORTS ALLAHABAD SERIES

3. On 16.10.2008 Sri. Gayabudh Singh
son of Sri. Surya Lal Singh gave a
complaint to the Superintendent of Police,
C.B.I., alleging that his father has taken a
Kisan Credit Card loan of Rs.40,000/- and
after he had deposited Rs.11,000/- towards
repayment of the loan, the loan amount was
waived off by the Government. The
appellant, who was the Manager of Sarva
U. P. Gramin Bank, had demanded
Rs.3,000/- for issuing a no-dues certificate
to his father. On the same date, the
Superintendent
of
police
made
an
endorsement that the complaint seems to be
genuine and upon his order, an F.I.R.
bearing RC No. 0062008A0016/2008 under
Sections 7 and Section 13 (1) (d) read with
Section 13 (2) of the Prevention of
Corruption Act, 1988 was registered on
16.10.2008 itself.

4. A trap was laid on 17.10.2008. Two
independent witnesses accompanied the
trap team. The team members and a witness
Dr. Harish Chandra Arya stayed outside the
Bank's branch whereas the complainant
Gayabudh Singh and the shadow witnesses
Sri. Vikas Bharti went inside the Bank.
After sometime, Sri. Vikas Bharti came
outside and gave a signal, whereupon the
trap team and the other independent
witnesses went inside the Bank and they
caught the appellant red handed. At the
instruction of the trap laying officer, the
independent witnesses Dr. Harish Chandra
Arya recovered Rs.2,500/- kept inside a
passbook in the drawer of the appellant's
office table.

5. The Investigating Officer recorded
statements of the complainant Gayabudh
Singh under Section 161 Cr.P.C., who
supported
the
prosecution
case.
The
statement of one Jagdish Singh was
recorded on 17.11.2008. He stated that the
complainant did not do any work without
taking bribe and the people of the area were
very happy on the day the appellant was
caught.

6. The Investigating Officer recorded
statement of the shadow witness Sri. Vikas
Bharti on 10.11.2008 and he stated that he
had accompanied the complainant inside
the bank, but he had not gone inside the
cabin of the appellant. 5-6 persons were
present inside the appellant's cabin but they
declined to become witnesses in the case.
The complainant went near the appellant,
he and the appellant talked to each other for
about 2 minutes in low voices and the
shadow witness could not hear the
conversation. Thereafter the complainant
took out the money from his upper pocket
and passbook from his lower pocket, kept
the money in the passbook and handed it to
the appellant. The appellant took the
passbook in his right hand, opened the
passbook and saw something and kept the
same in the drawer of his table. Thereafter
the appellant gestured the complainant to
go out and the shadow witnesses also came
out of the bank with the complainant. Upon
his giving the signal, the trap team went
inside the bank and caught the appellant.

7. The Investigating Officer recorded
the statements of the other independent
witness Dr. Harishchandra Arya, the trap
laying Officer Sri. Surendra Rai, Inspector
C.B.I., Sri. Awdhesh Kumar Dwivedi, the
Regional Development Manager, Sarva U.
P. Gramin Bank and Sri. Pankaj Kumar
Srivastava, a clerk working in the Bank.

8. The Investigating Officer submitted
a charge-sheet dated 29.12.2008 against the
Appellant for offences under Section 7 and
Section 13(2) read with Section 13(1)(d) of
the Prevention of Corruption Act, 1988
7 All. Mohd. Saleem Khan Vs. State of U.P.
957

9. The trial Court framed charges for
commission of the aforesaid offences on
31.05.2011.

10. The prosecution produced 8
witnesses. The complainant Gayabudh
Singh was examined as PW-1. He stated
that he had met the appellant for waiver of
the old loan and taking a new loan. The
appellant had told him that the old loan had
been waived off but he had not received
any order for granting a new loan. Some
persons outside the Bank told that perhaps
giving
something
might
help.
Some
persons sitting at a hotel had given him a
phone
number
and
said
that
the
complainant should go to him at Lucknow
and he would get a K.C.C. very fast. The
complainant categorically stated that he did
not meet the appellant after waiver of the
loan for getting a no-dues certificate. He
stated that he had called on the phone
number that was given to him, he was
called to C.B.I. office at Lucknow and he
had written the complaint as per the
directions of C.B.I. officials with the object
of getting a KCC loan. Sri. Surendra Rai
had asked him to arrange the money. As the
complainant did not did not support the
prosecution case, he was declared hostile at
the request of the prosecution.

11. During his cross-examination by
the Public Prosecution, the complainant
stated that he had not written the complaint
by himself, he was made to write the
complaint as per the dictation given to him.
The complainant stated that statement
recorded under Section 161 Cr.P.C. had not
been given by him. The complainant stated
that he had given the passbook with the
money kept in it to the appellant in
presence of a person from the C.B.I. and he
had said that as his loan had been waived,
an endorsement of nil dues be made on it.
He had kept the pass book on the table of
the appellant. He denied that the appellant
had kept the pass book in the drawer of his
table. He said that he had signed the
recovery memo under pressure of the C.B.I.
team. The appellant categorically denied
that the appellant had demanded any bribe
from him.

12. During the cross-examination
conducted by the defence' Counsel, the
complainant stated that he had hidden the
money inside the passbook and at the time
of keeping the passbook on the appellant's
table, he had not said that money was kept
in the passbook. The appellant had not
picked up the pass book in his presence. He
said that the C.B.I. officials had asked him
to put the money inside the passbook and
the appellant had not demanded any money
from him and he had told the C.B.I.
officials that the appellant would not take
the money from him. Upon this the C.B.I.
officials had folded the notes, kept it inside
the passbook and instructed him to
handover the passbook to the appellant or
to put it near him. The complainant further
stated that the documents written in the
English language had not been prepared in
his presence and he had been made to put
his signatures on blank papers.

13. The complainant also stated that he
did not require any no-dues certificate for
taking a K.C.C. loan, as the earlier loan had
been taken by his father. The C.B.I.
officials falsely implicated the appellant
through him under pretext of getting him a
K.C.C. loan. He could not understand the
entire plan of the C.B.I. officials and had he
understood it, he would not have taken any
action to falsely implicate the appellant.

14. The shadow witness Sri. Vikas
Bharti was examined as PW-2 and in his
958 INDIAN LAW REPORTS ALLAHABAD SERIES
examination-in-chief,
he
stated
that
although he had gone inside the Bank with
the complainant, the complainant alone had
gone inside the appellant's cabin and he
was standing outside, at a distance of about
6 feet from the appellant's seat. He could
not hear the conversation between the
complainant and the appellant. However,
he reiterated the statement recorded by the
Investigating Officer that stated that the
complainant took out the money from his
upper pocket and passbook from his lower
pocket, kept the money in the passbook and
handed it to the appellant. The appellant
took the passbook in his right hand, opened
the passbook and saw something and kept
the same in the drawer of his table.

15. During cross-examination, PW-2
stated that some powder was put on the
currency notes used in the trap, but no
powder was put on any other thing,
including the passbook. He said that when
the complainant had went inside the
appellant's cabin, there were 5-6 persons
present there. He could not hear the
conversation between the appellant and the
complainant and he did not hear about any
demand made by the appellant. 5-6 persons
were present when the conversation was
taking place between the complainant and
the appellant. He also stated that the
appellant had not counted the notes by
taking the notes in his hand.

16. Dr. Harishchandra Arya, the other
independent witness, was examined as PW3 and he supported the prosecution case
and he stated that he had taken out the pass
book with the money kept inside it, from
the drawer of the table.

17. PW-4 Sri. Awdhesh Kumar
Dwivedi was an employee of the Bank and
he stated that the loan of the complainant's
father had already been waived and an
entry to this effect had already been made
in the loan waiver register - document no.
D-12 produced before the Court. During
cross-examination, PW-4 stated that the list
of loan waiver had been put on the notice
board of the Bank and this information was
also uploaded on the website of the Bank.

18. PW-5 Pankaj Kumar Srivastava
was working as Clerk/Cashier in the Bank.
He stated that loans taken by 411 farmers
from the Bank had been waived. The Head
Office had issued an order that the loan
waiver
certificates
be
sent
to
the
beneficiaries till 15.10.2008.

19. The trap laying officer Sri.
Surendra
Rai,
Inspector
C.B.I.
was
examined as PW-6 and he supported the
prosecution case. However, he had not
witnessed the demand and acceptance of
bribe by the appellant.

20. PW-7 Sri. Mahesh Singh was the
Investigating Officer. He admitted that
during investigation, he had found that the
shadow witnesses had not heard any
demand of money made by the appellant.

21.
Sri.
Ashok
Kumar
Singh,
Chairman, Sarva U. P. Gramin Bank was
the prosecution sanction authority and he
has been examined as PW-8.

22. The appellant produced 8 defence
witnesses. DW-2 Sri. Pradeep Kumar
Tandon, the Branch Manager of the Bank
stated that as per the order passed by the
regional Manager of the Bank, he had
conducted an enquiry to ascertain as to
whether the appellant had issued the loan
waiver certificates and whether he had
taken any bribe for doing so. He had made
enquiries from some farmers and 70
7 All. Mohd. Saleem Khan Vs. State of U.P.
959
farmers had given in writing that no money
was demanded from them and they did not
give any money.

23. In his statement recorded on
17.01.2013, DW-4 Jagdish Singh stated
that earlier he had come to record his
statement in the Court on 21.11.2011 in
pursuance
of
a
summon
issued
on
09.11.2011. He was shown his statement
recorded by the Investigating Officer under
Section 161 Cr.P.C. and he had told the
Public Prosecutor that he had not given any
such statement to the investigating Officer
and the statement is wrong. Upon this, the
Public Prosecutor sent him back without
examining him as a witness. Nothing
significant
came
out
in
his
crossexamination conducted by the Public
Prosecutor.

24. DW-5 Smt. Pushpa Mishra runs a
self help group and she holds an account in
the Bank. She stated that she and three
other ladies of self help groups were
present inside the appellant's cabin at the
time of the trap. A person entered the
cabin, kept the passbook on the table and
he quietly went out in a hurry. Within 2
minutes, 4-5 persons came there and they
alleged that the appellant had taken bribe.
They forcibly put the passbook inside the
appellant's pocket. The appellant took out
the passbook from his pocket and threw it
away. When the witness and some other
persons present there objected against it,
the trap team members started beating the
appellant and asked the witness and the
other persons to leave, else they would also
be implicated. She stated that she had made
a written complaint regarding this incident
to the Regional manager of the Bank on
23.10.2008 and she filed the same in the
Court. She categorically stated that no
employee of the Bank had demanded any
money from her. Even during her crossexamination, DW-5 specifically stated that
the appellant does not take bribe and he has
been falsely implicated. She remained
consistent in her statement during her
cross-examination and no discrepancy
came to light.

25. DW-7 Mohd. Shamshad stated that
he holds an account with the Bank and he
was present in the appellant's cabin at the
time of the trap. A person came there, kept
a passbook at the table and left quietly. 5-6
persons entered the cabin after 2 minutes,
one of them picked up the pass book and
started putting in the appellant's pocket
alleging that he takes bribe. The appellant
threw away the passbook and denied the
allegation. 5-6 ladies were present there.
One of them got up and this witness also
objected to the appellant being implicated.
The trap team turned every one present
there out of the Bank. DW-7 remained
consistent
even
during
his
crossexamination.

26. The trial Court held that PW-1 -
the complainant, has accepted that the
complaint is in his hand writing and he has
admitted his signatures on it. However, he
has stated that the appellant had not
demanded or taken any money from him,
no money was recovered from the appellant
in his presence and he had not seen from
where the C.B.I. officials had recovered the
money. He said that when he had hidden
the money in the passbook and had kept the
passbook on the table, he had not told that
there was money in the passbook. The
shadow witness PW-2 has stated that he
could not hear the conversation between
the
complainant
and
the
appellant.
However, PW-2 stated that the appellant
took the passbook, opened it and saw it and
kept it inside his table drawer along with
960 INDIAN LAW REPORTS ALLAHABAD SERIES
the money. PW-2 also stated that no
powder was put on the passbook. He stated
that the appellant did not count the notes by
touching the notes by his hands. The trial
Court held that the other independent
witness PW-3 Dr. Harishchandra Arya
stated that the PW-2 had told him that the
appellant had taken the passbook with the
money kept inside it, from the complainant.

27. The trial Court referred to the
statement of DW-5 Smt. Pushpa Singh and
held that as this witness has admitted that
she did not make any complaint to any
administrative
or
Police
officer,
her
presence at the spot becomes doubtful.

28. The trial Court held that DW-7
Mohd. Shamshad had stated that while the
appellant was making entries in his
passbook, the CBI team had caught him
whereas the last entry in his passbook was
made on 10.03.2008 and no entry was
made in it on 17.03.2008 from which it
appears that DW-7 was not present in the
appellant's cabin at the time of the trap and
the trial Court discarded the testimony of
PW-7.

29. The trial Court rejected the
submission made on behalf of the appellant
that no powder was put on the passbook on
the ground that if 3 notes of Rs.500/- and
10 notes of Rs.100/- are kept in a passbook
measuring 3 inches X 5 inches, the notes
would come out naturally and will touch
the fingers of the appellant and the solution
would change its colour when his fingers
are put in it.

30. The trial Court held that the
prosecution evidence has proved that the
appellant obtained Rs.2,500/- from the
complainant. However, the prosecution
could not prove the demand of bribe made
by the appellant. The trial Court convicted
the appellant for the offence under Section
7 of the Prevention of Corruption Act, 1988
and has sentenced him to undergo rigorous
imprisonment for a period of three years
and to pay Rs.15,000/- as fine. In case of
failure to pay fine, the appellant would
have to undergo rigorous imprisonment for
an additional period of six months. The
appellant has been acquitted of the offence
under Section 13 (2) read with Section 13
(1) (d) of the Prevention of Corruption Act,
1988 and the order of acquittal has not been
challenged and it has attained finality. Only
conviction and sentence of the appellant
under Section 7 of the Prevention of
Corruption Act, 1988 has been challenged
before this Court.

31. The trial Court had released the
appellant on interim bail and thereafter, this
Court had also enlarged the appellant on
bail.

32. Assailing the validity of the
judgment of the trial Court, the learned
Counsel for the appellant has submitted
that the appellant has not supported the
prosecution case and he has turned hostile.
The shadow witness stated that he did not
hear the appellant demanded any money
from the complainant. Therefore, there is
no
evidence
that
the
appellant
had
demanded any money from the appellant.

33. The learned Counsel for the
appellant has relied upon the judgments in
the cases of B. Jayaraj v. State of A.P.:
(2014) 13 SCC 55, P. Satyanarayana
Murthy v. State of A.P.: (2015) 10 SCC
152, Neeraj Dutta v. State (NCT of
Delhi): (2023) 4 SCC 731 and State of
Maharashtra v. Dnyaneshwar Laxman
Rao Wankhede: (2009) 15 SCC 200.

34. The learned Counsel for the
respondent - C.B.I. has relied upon the
7 All. Mohd. Saleem Khan Vs. State of U.P.
961
judgments in the cases of Hazari Lal v.
State (Delhi Admn.): (1980) 2 SCC 390,
M. Narsinga Rao v. State of A.P.: (2001)
1 SCC 691, Neeraj Dutta v. State (NCT
of Delhi): (2023) 4 SCC 731, Vinod
Kumar v. State of Punjab: (2015) 3 SCC
220 and Vinod Kumar v. State of
Punjab: (2015) 3 SCC 220.

35. Before proceeding to understand
the law laid down in the cases relied upon
by the learned Counsel for the parties, it
would be appropriate to have a look at
Sections 7 and 13 of the Prevention of
Corruption Act, 1988, as the same stood at
the relevant time.

36. At the relevant time, Section 7 of
the Prevention of Corruption Act, 1988
read as follows: -

"7. Public
servant
taking
gratification
other
than
legal
remuneration in respect of an official
act.-Whoever, being, or expecting to be a
public servant, accepts or obtains or agrees
to accept or attempts to obtain from any
person, for himself or for any other person,
any gratification whatever, other than legal
remuneration, as a motive or reward for
doing or forbearing to do any official act
or for showing or forbearing to show, in
the exercise of his official functions, favour
or disfavour to any person or for rendering
or attempting to render any service or
disservice to any person, with the Central
Government or any State Government or
Parliament or the Legislature of any State
or with any local authority, corporation or
Government company referred to in clause
(c) of Section 2, or with any public servant,
whether named or otherwise, shall be
punishable with imprisonment which shall
be not less than three years but which may
extend to seven years and shall also be
liable to fine.

Explanations...."

37. At the relevant time, Section
13(1)(d) of the Prevention of Corruption
Act, 1988 read as follows: -

"13. Criminal misconduct by a
public servant.-

(1) A public servant is said to
commit
the
offence
of
criminal
misconduct,-

* * *

(d) if he,-

(i) by corrupt or illegal means,
obtains for himself or for any other person
any valuable thing or pecuniary advantage;
or

(ii) by abusing his position as a
public servant, obtains for himself or for
any other person any valuable thing or
pecuniary advantage; or

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

* * *

38. Section 20 of the Prevention of
Corruption Act, 1988 is also relevant for
the present case and at the relevant time, it
provided as follows: -

"20. Presumption where public
servant accepts gratification other than
legal remuneration.-(1) Where, in any
trial of an offence punishable under Section
7 or Section 11 or clause (a) or clause (b)
of sub-section (1) of Section 13 it is proved
that an accused person has accepted or
962 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

* * *

(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."

39. In Hazari Lal v. State (Delhi
Admn.): (1980) 2 SCC 390: -

"9.
...
In
the
facts
and
circumstances of a particular case a court
may be disinclined to act upon the evidence
of such an officer without corroboration,
but, equally, in the facts and circumstances
of
another
case
the
court
may
unhesitatingly accept the evidence of such
an officer. It is all a matter of appreciation
of evidence and on such matters there can
be no hard and fast rule, nor can there be
any precedential guidance. We are forced
to say this because of late we have come
across several judgments of Courts of
Session and sometimes even of High Courts
where reference is made to decisions of this
Court on matters of appreciation of
evidence and decisions of pure question of
fact....

* * *

11. ... where the recovery of the
money coupled with other circumstances
leads to the conclusion that the accused
received gratification from some person the
court would certainly be entitled to draw
the presumption under Section 4(1) of the
Prevention of Corruption Act. In our view
both the decisions are of no avail to the
appellant and as already observed by us
conclusions of fact must be drawn on the
facts of each case and not on the facts of
other cases. In other words there can be no
precedents on questions of facts..."

40. In M. Narsinga Rao v. State of
A.P.: (2001) 1 SCC 691, it was held that: -

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

15. The word "proof" need be
understood in the sense in which it is
defined in the Evidence Act because proof
depends upon the admissibility of evidence.
A fact is said to be proved when, after
7 All. Mohd. Saleem Khan Vs. State of U.P.
963
considering the matters before it, the court
either believes it to exist, or considers its
existence so probable that a prudent man
ought, under the circumstances of the
particular case, to act upon the supposition
that it exists. This is the definition given for
the word "proved" in the Evidence Act.
What is required is production of such
materials
on
which
the
court
can
reasonably act to reach the supposition
that a fact exists. Proof of the fact depends
upon the degree of probability of its having
existed. The standard required for reaching
the supposition is that of a prudent man
acting in any important matter concerning
him. Fletcher Moulton L.J. in Hawkins v.
Powells Tillery Steam Coal Co. Ltd. (1911)
1 KB 988, observed like this:

"Proof does not mean proof to
rigid mathematical demonstration, because
that is impossible; it must mean such
evidence as would induce a reasonable
man to come to a particular conclusion."

41. In B. Jayaraj v. State of A.P.:
(2014) 13 SCC 55, the Hon'ble Supreme
Court held that: -

"7. Insofar as the offence under
Section 7 is concerned, it is a settled
position in law that demand of illegal
gratification is sine qua non to constitute
the said offence and mere recovery of
currency notes cannot constitute the
offence under Section 7 unless it is proved
beyond all reasonable doubt that the
accused voluntarily accepted the money
knowing it to be a bribe. The above
position has been succinctly laid down in
several judgments of this Court. By way of
illustration reference may be made to the
decision
in C.M.
Sharma v. State
of
A.P. [(2010) 15 SCC 1] and C.M. Girish
Babu v. CBI [(2009) 3 SCC 779].

* * *

9. Insofar as the presumption
permissible to be drawn under Section 20
of the Act is concerned, such presumption
can only be in respect of the offence under
Section 7 and not the offences under
Sections 13(1)(d)(i) and (ii) of the Act. In
any event, it is only on proof of acceptance
of illegal gratification that presumption
can be drawn under Section 20 of the Act
that such gratification was received for
doing or forbearing to do any official act.
Proof of acceptance of illegal gratification
can follow only if there is proof of
demand. As the same is lacking in the
present case the primary facts on the basis
of which the legal presumption under
Section 20 can be drawn are wholly
absent."

(Emphasis added)

42. In Vinod Kumar v. State of
Punjab: (2015) 3 SCC 220, the Hon'ble
Supreme Court held that: -

"45. ...the authorities in B.
Jayaraj (2014) 13 SCC 55, and M.R.
Purushotham (2015) 3 SCC 247, do not lay
down as a proposition of law that when the
complainant turns hostile and does not
support the case of the prosecution, the
prosecution cannot prove its case otherwise
and the court cannot legitimately draw the
presumption under Section 20 of the Act."

43. In P. Satyanarayana Murthy v.
State of A.P.: (2015) 10 SCC 152, it was
held that: -

"23. The proof of demand of
illegal gratification, thus, is the gravamen
of the offence under Sections 7 and
964 INDIAN LAW REPORTS ALLAHABAD SERIES
13(1)(d)(i) and (ii) of the Act and in
absence thereof, unmistakably the charge
therefor, would fail. Mere acceptance of
any amount allegedly by way of illegal
gratification or recovery thereof, dehors
the proof of demand, ipso facto, would thus
not be sufficient to bring home the charge
under these two sections of the Act. As a
corollary, failure of the prosecution to
prove the demand for illegal gratification
would be fatal and mere recovery of the
amount from the person accused of the
offence under Section 7 or 13 of the Act
would
not
entail
his
conviction
thereunder."

44. In Neeraj Dutta v. State (NCT of
Delhi): (2023) 4 SCC 731, a Constitution
Bench consisting of five Hon'ble Judges of
the Supreme Court discussed various
precedents on the point and summarized he
law as follows: -

"88. What emerges from the
aforesaid discussion is summarised as
under:

88.1. (a) Proof of demand and
acceptance of illegal gratification by a
public servant as a fact in issue by the
prosecution is a sine qua non in order to
establish the guilt of the accused public
servant under Sections 7 and 13(1)(d)(i)
and (ii) of the Act.

88.2. (b) In order to bring home
the guilt of the accused, the prosecution
has to first prove the demand of illegal
gratification
and
the
subsequent
acceptance as a matter of fact. This fact in
issue can be proved either by direct
evidence which can be in the nature of
oral evidence or documentary evidence.

88.3. (c) Further, the fact in
issue, namely, the proof of demand and
acceptance of illegal gratification can also
be proved by circumstantial evidence in
the
absence
of
direct
oral
and
documentary evidence.

88.4. (d) In order to prove the
fact in issue, namely, the demand and
acceptance of illegal gratification by the
public servant, the following aspects have
to be borne in mind:

(i) if there is an offer to pay by
the bribe-giver without there being any
demand from the public servant and the
latter simply accepts the offer and receives
the illegal gratification, it is a case of
acceptance as per Section 7 of the Act. In
such a case, there need not be a prior
demand by the public servant.

(ii) On the other hand, if the
public servant makes a demand and the
bribe-giver accepts the demand and tenders
the demanded gratification which in turn is
received by the public servant, it is a case
of obtainment. In the case of obtainment,
the prior demand for illegal gratification
emanates from the public servant. This is
an offence under Sections 13(1)(d)(i) and
(ii) of the Act.

(iii) In both cases of (i) and (ii)
above, the offer by the bribe-giver and the
demand by the public servant respectively
have to be proved by the prosecution as a
fact in issue. In other words, mere
acceptance or receipt of an illegal
gratification without anything more would
not make it an offence under Section 7 or
Sections 13(1)(d)(i) and (ii), respectively of
the Act. Therefore, under Section 7 of the
Act, in order to bring home the offence,
there must be an offer which emanates
from the bribe-giver which is accepted by
the public servant which would make it an
7 All. Mohd. Saleem Khan Vs. State of U.P.
965
offence. Similarly, a prior demand by the
public servant when accepted by the bribegiver and in turn there is a payment made
which is received by the public servant,
would be an offence of obtainment under
Sections 13(1)(d)(i) and (ii) of the Act.

88.5. (e) The presumption of fact
with regard to the demand and acceptance
or obtainment of an illegal gratification
may be made by a court of law by way of
an inference only when the foundational
facts have been proved by relevant oral and
documentary evidence and not in the
absence thereof. On the basis of the
material on record, the court has the
discretion to raise a presumption of fact
while considering whether the fact of
demand
has
been
proved
by
the
prosecution
or
not.
Of
course,
a
presumption of fact is subject to rebuttal by
the accused and in the absence of rebuttal
presumption stands.

88.6. (f) In the event the
complainant turns "hostile", or has died
or is unavailable to let in his evidence
during
trial,
demand
of
illegal
gratification can be proved by letting in
the evidence of any other witness who can
again let in evidence, either orally or by
documentary evidence or the prosecution
can prove the case by circumstantial
evidence. The trial does not abate nor does
it result in an order of acquittal of the
accused public servant.

88.7. (g) Insofar as Section 7 of
the Act is concerned, on the proof of the
facts in issue, Section 20 mandates the
court to raise a presumption that the
illegal gratification was for the purpose of
a motive or reward as mentioned in the
said Section. The said presumption has to
be raised by the court as a legal
presumption or a presumption in law. Of
course, the said presumption is also subject
to rebuttal. Section 20 does not apply to
Sections 13(1)(d)(i) and (ii) of the Act.

88.8. (h) We clarify that the
presumption in law under Section 20 of the
Act is distinct from presumption of fact
referred to above in sub-para 88.5(e),
above, as the former is a mandatory
presumption
while
the
latter
is
discretionary in nature.

89. In view of the aforesaid
discussion and conclusions, we find that
there is no conflict in the three-Judge
Bench decisions of this Court in B.
Jayaraj [(2014)
13
SCC
55]
and P.
Satyanarayana Murthy [(2015) 10 SCC
152] with the three-Judge Bench decision
in M. Narsinga Rao [(2001) 1 SCC 691],
with regard to the nature and quality of
proof necessary to sustain a conviction for
the offences under Sections 7 or 13(1)(d)(i)
and (ii) of the Act, when the direct evidence
of the complainant or "primary evidence"
of the complainant is unavailable owing to
his death or any other reason. The position
of law when a complainant or prosecution
witness turns "hostile" is also discussed
and the observations made above would
accordingly apply in light of Section 154 of
the Evidence Act. In view of the aforesaid
discussion, we hold that there is no conflict
between the judgments in the aforesaid
three cases.

90. Accordingly, the question
referred
for
consideration
of
this
Constitution Bench is answered as under:

In the absence of evidence of the
complainant
(direct/primary,
oral/documentary
evidence)
it
is
permissible
to
draw
an
inferential
966 INDIAN LAW REPORTS ALLAHABAD SERIES
deduction of culpability/guilt of a public
servant under Section 7 and Section
13(1)(d) read with Section 13(2) of the Act
based on other evidence adduced by the
prosecution."

(Emphasis added)

45. The principles deducible from the
aforesaid authorities are as follows:

(i)
The
demand
of
illegal
gratification is sine qua non to constitute
the offence under Section 7 and mere
recovery
of
currency
notes
cannot
constitute the offence under Section 7,
unless it is proved beyond all reasonable
doubt that the accused voluntarily accepted
the money knowing it to be a bribe.