# Om Prakash Vimal v. State

- **Citation:** (2023) 3 ILRA 1236
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-17
- **Case number:** Criminal Appeal No. 1343 of 2015
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-vimal-v-state-49920
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) -Appeal
under Section 374(2) Cr.P.C. read with
Section 27 of the Prevention of Corruption
Act, 1988- Conviction of income tax official
under Sections 7, 13(2) read with Section
13(1)(d) of P.C. Act- bribe demanded to nil
the
income
tax
assessment
of
the
informant- trap laid- accused appellant
caught red handed by CBI- court refuted
submission that recovery of bribe amount
not made from accused. (Para 37)

HELD: In view thereof, this Court does not find
any credence in the submission of the learned
counsel for the accused-appellant that recovery
was not made from the accused-appellant. Once
the
accused-appellant
accepted
the
bribe
amount and he kept it in the drawer of the
office table, which was of the accused-appellant,
the recovery from the drawer of the office table
of the accused-appellant, is recovery from the
accused-appellant himself. (Para 37)

B. Conviction under Sections 7 and 13 of
the P.C. Act- essentials- demand and
acceptance
of
illegal
gratification
by
accused
public
servant-
no
offence
without proof of demand- term "demand"-
not defined in P.C. Act- inserted by
interpretative process- Section 20 of P.C.
Act- Statutory presumption of guilt- shift
in burden of proof- accused to prove that
what
has
been
received-
valuable
consideration
and
not
an
illegal
gratification- foundational facts proved-
presumption of receipt of obtainment of
illegal gratification- if in absence of
evidence of the complainant- inferential
deduction of culpability/guilt of public
servant- based on evidence adduced by
prosecution
permissible-
conviction
upheld- Appeal dismissed. (Paras 39 to
46)

HELD: It is well settled law that to record the
conviction under Sections 7 and 13 of the P.C.
Act, the demand and acceptance of illegal
gratification by the accused public servant
should be proved by cogent and credible
evidence. It is also settled law that mere
possession and recovery of money without proof
of demand by the accused does not constitute
an offence under Sections 7 and 13(2) read with
13(1)(d) of the PC Act, 1988 (P. Satyanarayana
Murthy Vs District Inspector of Police, St. of
Andhra Pradesh & anr., (2015) 10 SCC 152).
(Para 39)

Term "demand" does not find place under P.C.
Act, 1988, but it has virtually been inserted in
the statute by interpretative process. Section 20
3 All. Om Prakash Vimal Vs. State
1237
of the P.C. Act derives certain statutory
presumption of guilt.. (Para 40)

Plain reading with the words of Section 20 of
the P.C. Act, would mean that if it can be proved
that a public servant has received gratification,
Section 20 of the P.C. Act brings in statutory
presumption that he has received the same with
an illegal motive as laid down in Section 7 of the
Act. This shifts the burden of proof to the
accused, who is required to prove that what has
been received, is a valuable consideration and
not an illegal gratification. (Para 41)

Constitution Bench of the Supreme Court in a
recent judgment in the case of Neeraj Dutta vs
St., (2022) SCC OnLine SC 1724, has held that
to constitute an offence under Sections 7 and
13(2)/13(1)(d) (i) and (ii) of the P.C. Act, 1988,
if a bribe giver makes an offer to pay without
there being any prior demand of the same by a
public servant and public servant accepts and
receives the bribe, it would be a case of
acceptance under Section 7 of the P.C. Act,

## Text

_Characters 0–39,990 of 47,874. This is a partial read: ask again with offset=39990 for what follows._

1236 INDIAN LAW REPORTS ALLAHABAD SERIES
Order

44.

The
Criminal
Appeal
is
accordingly dismissed. The judgment and
order dated 05.11.2019 passed by the
learned trial Court in Special Session Trial
No. 19/2014 (State of U. P. Vs Azam)
arising out of Case Crime No. 652 / 2013,
under Section 376 IPC and Section 5 (m)/6
of POCSO Act, Police Station-Khorabar,
District-Gorakhpur is hereby affirmed.

45. Let a certified copy of the
judgment/order along with lower court
record be sent to the court concerned for
necessary compliance forthwith.
----------
(2023) 3 ILRA 1236
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.03.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Appeal No. 1343 of 2015

Om Prakash Vimal ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
Nandit Kumar Srivastava, Pranjal Krishna,
Prashant Singh Gaur

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

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 374(2) -Appeal
under Section 374(2) Cr.P.C. read with
Section 27 of the Prevention of Corruption
Act, 1988- Conviction of income tax official
under Sections 7, 13(2) read with Section
13(1)(d) of P.C. Act- bribe demanded to nil
the
income
tax
assessment
of
the
informant- trap laid- accused appellant
caught red handed by CBI- court refuted
submission that recovery of bribe amount
not made from accused. (Para 37)

HELD: In view thereof, this Court does not find
any credence in the submission of the learned
counsel for the accused-appellant that recovery
was not made from the accused-appellant. Once
the
accused-appellant
accepted
the
bribe
amount and he kept it in the drawer of the
office table, which was of the accused-appellant,
the recovery from the drawer of the office table
of the accused-appellant, is recovery from the
accused-appellant himself. (Para 37)

B. Conviction under Sections 7 and 13 of
the P.C. Act- essentials- demand and
acceptance
of
illegal
gratification
by
accused
public
servant-
no
offence
without proof of demand- term "demand"-
not defined in P.C. Act- inserted by
interpretative process- Section 20 of P.C.
Act- Statutory presumption of guilt- shift
in burden of proof- accused to prove that
what
has
been
received-
valuable
consideration
and
not
an
illegal
gratification- foundational facts proved-
presumption of receipt of obtainment of
illegal gratification- if in absence of
evidence of the complainant- inferential
deduction of culpability/guilt of public
servant- based on evidence adduced by
prosecution
permissible-
conviction
upheld- Appeal dismissed. (Paras 39 to
46)

HELD: It is well settled law that to record the
conviction under Sections 7 and 13 of the P.C.
Act, the demand and acceptance of illegal
gratification by the accused public servant
should be proved by cogent and credible
evidence. It is also settled law that mere
possession and recovery of money without proof
of demand by the accused does not constitute
an offence under Sections 7 and 13(2) read with
13(1)(d) of the PC Act, 1988 (P. Satyanarayana
Murthy Vs District Inspector of Police, St. of
Andhra Pradesh & anr., (2015) 10 SCC 152).
(Para 39)

Term "demand" does not find place under P.C.
Act, 1988, but it has virtually been inserted in
the statute by interpretative process. Section 20
3 All. Om Prakash Vimal Vs. State
1237
of the P.C. Act derives certain statutory
presumption of guilt.. (Para 40)

Plain reading with the words of Section 20 of
the P.C. Act, would mean that if it can be proved
that a public servant has received gratification,
Section 20 of the P.C. Act brings in statutory
presumption that he has received the same with
an illegal motive as laid down in Section 7 of the
Act. This shifts the burden of proof to the
accused, who is required to prove that what has
been received, is a valuable consideration and
not an illegal gratification. (Para 41)

Constitution Bench of the Supreme Court in a
recent judgment in the case of Neeraj Dutta vs
St., (2022) SCC OnLine SC 1724, has held that
to constitute an offence under Sections 7 and
13(2)/13(1)(d) (i) and (ii) of the P.C. Act, 1988,
if a bribe giver makes an offer to pay without
there being any prior demand of the same by a
public servant and public servant accepts and
receives the bribe, it would be a case of
acceptance under Section 7 of the P.C. Act,
1988. If a public servant himself makes a
demand and demand is accepted by bribe giver
and bribe is paid by the bribe giver, it is a case
of obtainment under Section 13(1)(d)(i) and
13(1)(d)(ii) of the P.C. Act. (Para 42)

It has been held that if the foundational facts
are
proved,
presumption
of
receipt
of
obtainment of illegal gratification would be
made. If such a presumption of fact would be
raised, it is subject to rebuttal by the accused as
the presumption under Section 20 of the PC. Act
is not an inviolable presumption. However, if the
presumption is not rebutted, the offence gets
proved as provided under Section 20 of the P.C.
Act. (Para 44)

The Supreme Court has answered the reference
that if in absence of evidence of the
complainant
(direct/primary/oral/documentary
evidence), it would be permissible to draw an
inferential deduction of culpability/guilt of a
public servant under Sections 7, 13(2)/13(1)(d)
of the P.C. Act based on other evidence adduced
by the prosecution. (Para 46)

Appeal dismissed. (E-14)

List of Cases cited:
1. P. Satyanarayana Murthy Vs District Inspector
of Police, St. of Andhra Pradesh & anr. (2015)
10 SCC 152

2. Neeraj Dutta Vs St. (2022) SCC OnLine SC
1724

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. The present appeal under Section 374(2)
Cr.P.C. read with Section 27 of the
Prevention of Corruption Act, 1988 ( for
short ''P.C. Act') has been filed against the
judgement and order dated 5.11.2015
passed by the learned Special Judge, CBI,
Court No.2, Lucknow in Criminal Case
No.9 of 2007 (CBI Vs. Om Prakash
Vimal),
arising
out
of
RC
No.0062006A0030/2006, Police Station
CBI/ACB, Lucknow, whereby the learned
trial court has convicted and sentenced the
accused-appellant under Section 7 of P.C.
Act for three years rigorous imprisonment
with fine of Rs.40,000/- and default of
payment of fine, further to undergo six
months rigorous imprisonment and under
Section 13(2) read with Section 13(1)(d) of
P.C.
Act
for
four
years
rigorous
imprisonment with fine of Rs.60,000/- and
in default of payment of fine, further to
undergo one year additional rigorous
impoverishment with direction that both the
sentences shall run concurrently except for
fine.

Facts:-

2. Brief facts of the case are that a
written complaint dated 26.12.2006 was
received in the office of the Superintendent
of Police, CBI. Lucknow by Sri Shailendra
Kumar, Proprietorship of firm of M/s
Kashyap Trading Company alleging that
the said concern of the complainant was in
the wholesale trading of food-grains and
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
was audited regularly by the Chartered
Accountant every year. From the year
2002-03 as his firm was running into
losses, the income tax was not payable and,
therefore, was not paid. The complainant
received a notice from the Income Tax
Office in April, June and November, 2006
in
respect
of
the
returns
of
the
proprietorship firm of the complainant for
Financial Years 2003-04 and 2004-05. In
respect of these notices, he met the
accused-appellant
several
times
and
clarified his position through letter dated
7.12.2006. On 21.12.2006, the accusedappellant demanded Rs.60,000/- as bribe
amount to nil his income tax assessment.
The
accused-appellant
threatened
the
complainant that in case he would not pay
the bribe amount, heavy tax and penalty
would be imposed on the complainant.
Thereafter,
on
the
request
of
the
complainant, the accused-appellant told
him to reduce the bribe amount to
Rs.50,000/- and directed the complainant to
bring the bribe amount by 27.12.2006 at his
residence in making the tax liability of the
complainant nil.

3. The Superintendent of Police, CBI,
Lucknow after verifying the complaint,
directed for registration of the FIR and
nominated Sri V. Dixit as Trap Laying
Officer
(TLO).
A
trap
team
was
constituted, which included Shailendra
Kumar, the complainant; Ram Shabd
Verma, independent witness; Sri Junail
Ibad Khan, independent witness; N.N.
Pandey, CBI Inspector; G.K. Dubey; A.K.
Pandey; Diwakar Pandey; R.K. Tewari,
Sub-Inspector; S.K. Pandey, Ashok Kumar;
R.N. Shukla, Constable and G.S. Bisht with
T.L.O. In presence of these persons, pretrap proceedings were completed. The
complainant
brought
Rs.50,000/-
in
denomination
of
Rs.500/-
each.
The
numbers of these currency notes were
noted down and they were treated with
Phenolphthalein powder, and the said bribe
amount was kept in the right pocket of pant
of the complainant.

4. Ram Shabd Verma, independent
witness, was deputed as shadow witness to
be present at the time of giving the bribe
amount by the complainant to the accusedappellant. The other independent witness,
Junail Ibad Khan was directed to remain
present with the CBI team. The CBI team
after competing the pre-trap proceedings,
proceeded to the residence of the accusedappellant at 3 PM on 27.12.2006 itself.

5. The complainant and the shadow
witness were on motorcycle. The accusedappellant was seen going to his office on
foot from his residence. The complainant
stopped the motorcycle and requested the
accused-appellant to go to his residence.
However, the accused-appellant asked the
complainant to reach to his office. This
conversation between the accused-appellant
and the complainant was clearly heard by
the shadow witness,Ram Shabd Verma.
This conversation was told to T.L.O. Sri V.
Dixit, who decided to catch the accusedappellant red handed accepting the bribe
amount in his office.

6. As per the plan, the complainant
and the shadow witness went to the retiring
room of the accused-appellant at 16.15
hours. On indication by the shadow
witness, the CBI team with independent
witness, Junail Ibad Khan reached to the
office of the accused-appellant and caught
him red handed accepting the bribe amount.
The bribe amount was recovered from the
drawer of the office table of the accusedappellant. The colour of wash of the hands
and fingers of the accused-appellant turned
3 All. Om Prakash Vimal Vs. State
1239
pink. The bribe amount was recovered by
the independent witness, Junail Ibad Khan
from the drawer of the office table of the
accused-appellant. The numbers of the
currency notes matched with the numbers
mentioned in the pre-trap proceedings.
After completing the investigation, charge
sheet was submitted by the CBI/ACB,
Lucknow under Sections 7 and 13(2) read
with Section 13(1)(d) of the P.C. Act.

7. The CBI concluded in its
investigation that the accused-appellant
was caught red handed while demanding
and
accepting
the
bribe
amount
of
Rs.50,000/- on 27.12.2006 in presence of
the two independent witnesses in his office
and the accused-appellant was arrested on
the spot. Sanction order for prosecuting the
accused-appellant was issued by the
Commissioner of Income Tax, Faizabad on
23.3.2007. After taking cognizance, the
accused-appellant was summoned to face
the trial. After completing the proceedings
under Section 207 Cr.P.C. on 24.10.2007,
charges were framed against the accusedappellant by the learned trial court under
Sections 7 and 13(2) read with Section
13(1)(D) of P.C. Act. The accusedappellant denied charges and claimed trial.

8. In investigation, it was noticed that
the
accused-appellant
was
posted
as
Income Tax Officer from 30.6.2005 to
27.12.2006. The accused-appellant was on
a position to make assessment of the
income tax of the proprietorship firm of the
complainant. The case file for assessment
of
the
proprietorship
firm
of
the
complainant was pending from the date
when the accused-appellant took charge on
30.6.2005 from his predecessor, Sri Nimish
Mishra. The accused-appellant did not
finalise the assessment of the proprietorship
firm of the complainant and kept it pending
and did not finalise the assessment order till
27.12.2006. He kept the proceedings of
assessment pending in order to receive
illegal gratification from the complainant.

9. During investigation, it was also
noticed that no order was passed in the
order-sheet of the assessment proceedings
of
the
proprietorship
firm
of
the
complainant since June, 2006. Initially, the
accused-appellant demanded Rs.60,000/-
from the complainant as illegal gratification
on 21.12.2006. However, finally he agreed
to
receive
Rs.50,000/-
as
illegal
gratification on 27.12.2006 to finalise the
assessment at nil tax on the proprietorship
firm of the complainant.

Evidence:-

10. The prosecution to prove its case,
examined the following witnesses:-

1. P.W.-1, D.C. Pant, in respect of the
sanction
order
passed
by
him
for
sanctioning prosecution of the accusedappellant;

2. P.W.-2, Shailendra Kumar, the
complainant;

3. , Ram Shabd Verma, shadow
witness;

4. P.W.-4, V. Dixit, T.L.O.;

5.
P.W.-5,
Junail
Ibad
Khan,
independent witness;

6. P.W.-6, Shobhnath Saroj, Income
Tax Officer;

7. P.W.-7, Devendra Singh, Additional
Superintendent of Police, Investigating
 Officer;

8. P.W.-8, Yogendra Prasad Gupta,
Assistant General Manager, BSNL, Basti;

9. P.W.-9, Virendra Dev Singh,
Income Tax Inspector, Basti; and

10. P.W.10, Ajit Kumar Jain, Retired
Additional Commissioner,
1240 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Several documentary evidences
were also produced in support of the
prosecution case, which are mentioned in
the impugned judgement and order of the
learned trial court.

12. The accused-appellant in his
statement recorded under Section 313
Cr.P.C. denied the prosecution case,
evidence and the circumstances against
him. The accused-appellant said that on
30.6.2005, he took the charge of the
Income
Tax
Officer,
Basti.
The
complainant
could
not
have
been
discharged of his liability to pay the income
tax, The appellant did not demand or accept
any bribe amount from the complainant and
neither any bribe amount was recovered
from him. As soon as he reached the office
from his residence after having lunch at his
residence, the CBI personnel apprehended
him. The complainant wanted to escape
from the income tax liability, for which he
conspired and falsely implicated the
accused-appellant. The accused-appellant,
however, said that Rs.50,000/- was kept in
the drawer of his office table by the
complainant in his absence. The accusedappellant said that he was innocent and he
neither demanded any bribe amount from
the complainant nor any bribe amount was
recovered from him. The complainant met
the accused-appellant while he was coming
back to his office from his residence after
having lunch. The accused-appellant was
on foot and the complainant was on
motorcycle. Before the accused-appellant
could reach his office on foot, the
complainant reached to the office of the
accused-appellant and kept Rs.50,000/- in
the drawer of his office table. Further, he
said that he could not have discharged the
complainant from his liability to pay the
income tax. When the complainant could
come to know that on 31.12.2006 the order
would be passed against him fixing his
income tax liability, he falsely implicated
the accused-appellant.

13. In his defence, the accusedappellant produced two witnesses, D.W.-1
Hari Ram, and Nand Kumar, D.W.-2 and
also
submitted
documentary
evidence
Ext.Ka-1
and
Ext.Ka-2,
information
received under the Right to Information
Act.

14. P.W.-1, Sri D.C. Pant, Income
Tax Commissioner, Faizabad proved the
order dated 23.3.2007 (Ext.Ka-1) granting
sanction for prosecution of the accusedappellant.

15. P.W.-2, Shailendra Kumar, the
complainant, deposed that he got registered
M/s
Kashyap
Trading
Company
proprietorship firm in the year 1996 and
started wholesale business of food-grains in
the year 1999. Initially, his business did not
come
within
the
income
tax
limit.
However, w.e.f. 2003-04 when he took
loan of Rs.18,00,000/- from the bank, his
business increased and he submitted the
requisite papers before the Income Tax
Department in Varanasi and Basti. No
income tax was paid as his business was
not running in profit. A raid was conducted
on 30.1.2004 at the complainant's place,
and this affected the business of the
complainant and he suffered losses.

16. The accused-appellant started
proceedings in respect of the Assessment
Years 2003-04 and 2004-05 of the
proprietorship firm of the complainant. The
entire requisite papers were submitted
before the accused-appellant. However, the
accused-appellant demanded Rs.60,000/-
for finalising the assessment and making
the tax liability nil. He demanded the bribe
3 All. Om Prakash Vimal Vs. State
1241
money of Rs.60,000/- on 21.12.2006.
When the complainant expressed his
inability to pay Rs.60,000/-, the accusedappellant agreed to accept Rs.50,000/- to be
paid on 27.12.2006 at his residence and
said that he would pass the order on
31.12.2006 making the tax liability nil in
respect of the proprietorship firm of the
complainant. He further deposed in respect
of the pre-trap and post-trap proceedings.
He said that he and the shadow witness
reached to the office of the accusedappellant after he met the appellant while
he was coming back from his residence
after having lunch on 27.12.2006. The
accused-appellant
asked
whether
he
brought the bribe amount of Rs.50,000/- or
not. He introduced the shadow witness as
his brother-in-law
and requested the
accused-appellant to reduce the bribe
amount, on which he said that "neither
brother-in-law nor father-in-law would be
of any help, whatever was agreed, the
complainant should pay". On this, he took
out Rs.50,000/- Phenolphthalein treated
currency notes from his right hand pocket
of the pant and gave it to the accusedappellant, which he took from his right
hand and kept in the drawer of his office
table. On indication by the shadow witness,
the CBI team reached there and the
accused-appellant was caught red handed.

17. P.W.-3, Ram Shabd Verma,
shadow witness, also reiterated the pre-trap
and
post-trap
proceedings
and
fully
corroborated
the
evidence
of
the
complainant, P.W.-2.

18. P.W.-4, Sri V. Dixit, DSP,
CBI/ACB, Dehradun in his evidence said
that from May, 2002 to May, 2008 he was
posted as Inspector in the office of the
CBI/ACB, Lucknow. On 26.12.2006, at
around 1230 hours Sri Praveen Ranjan,
Superintendent of Police, CBI, Lucknow
called him in his room and introduced him
to the complainant, proprietor of M/s
Kashyap Trading Company. He handed
over the complaint given by Shailendra
Kumar, the complainant, on which RC
No.0062006A0030/2006 was registered on
26.12.2006. He proved the signatures of Sri
Praveen Ranjan on the said complaint as
well as the FIR, which were exhibited. The
said witness also fully corroborated the pretrap and post-trap proceedings and said that
the bribe amount was recovered by the
independent witness, Junail Ibad Khan
from the drawer of the office table of the
accused-appellant and the numbers of the
currency notes were matched with the
numbers
written
in
the
pre-trap
proceedings. The seizure memo was
prepared, which was exhibited and the
envelop containing the bribe amount was
also exhibited as Ext.Ka-2.

19. P.W.-5, Junail Ibad Khan,
independent witness, in his deposition said
that on 27.12.2006, he was working as
Engineer, Sub-division, Mobile in the
office of the General Manager, Telecom,
BSNL, Basti. He also corroborated the pretrap and post-trap proceedings. The said
witness said that he recovered Rs.50,000/-
bribe amount from the drawer of the office
table of the accused-appellant.

20. P.W.-6, Sri Shobh Nath Saroj,
Income
Tax
Officer,
Gonda
in
his
deposition said that on 28.12.2006 he took
charge of the Income Tax Officer, Basti in
place of the accused-appellant as the
accused-appellant was arrested by the CBI.
He proved the document regarding penalty
imposed
on
M/s
Kashyap
Treading
Company for Assessment Year 2004-05
vide order dated 20.6.2005 passed by Sri
Nimish Mishra, Income Tax Officer under
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 271-B of the Income Tax Act. He
also deposed and proved the document
imposing penalty of Rs.80,000/- on the
complainant for the Assessment Year 200304 vide order dated 20.6.2005 by Sri
Nimish Mishra. The order-sheet from
14.2.2005 to 20.6.2005 was written by Sri
Nimish Mishra, the then Income Tax
Officer for the Assessment Year 2003-04 in
respect of the income tax return of the
complainant. Vide order dated 5.8.2005,
notice under Section 226(3) of the Income
Tax Act was sent to the Branch Manager,
State Bank of India, Basti for recovering
Rs.80,000/- from the bank account of the
proprietorship firm of the complainant.
However,
the
said
notice
was
not
mentioned in the order-sheet, and it was the
duty of the accused-appellant to mention
the said fact and the notice in the ordersheet.

21. In respect of the Assessment Year
2004-05, the witness said that after
14.6.2006, no order was written on the
order-sheet in respect of the proceedings
for the Assessment Year 2004-05 by the
Income Tax Officer, whereas the accusedappellant
had
given
notices
dated
15.6.2006, 24.11.2006 and 30.11.2006 to
the complainant, proprietor of the firm.
However, these notices were not part of the
order-sheet and have not been mentioned.

22. For the Assessment Year 200304 in respect of the proceedings of
income
tax
assessment
of
the
complainant's
firm,
there
was
no
proceeding/order in the order-sheet after
7.6.2006. However, it was the duty of the
Income Tax Officer, Basti to write the
order-sheet. The question that why the
order-sheet was not written by the
accused-appellant, who was posted as
Income Tax Officer at the relevant time,
the witness said that it could very well be
explained
by
the
accused-appellant
himself.

23. P.W.-7, Devendra Singh, Additional
Superintendent of Police, CBI, New Delhi
said that after the prosecution sanction was
received, charge sheet was filed on 26.2.2007
against
the
accused-appellant
in
the
competent court.

24. P.W.-8, Sri Yogendra Pratap Gupta,
Assistant General Manager, BSNL, Basti said
that on the direction of the superior officer, he
remained present as witness out of his free
will during search of the house of the
accused-appellant on 27.12.2006.

25. P.W.-9, Virendra Dev Singh,
Inspector, Income Tax Office, Basti deposed
that he was posted as Stenographer from
2003 to 2007 in the Income Tax Office,
Basti. Vide notice dated 5.12.2003 issued
under Section 142 of the Income Tax Act
under the signature of the then Income Tax
Office, Sri Nimish Mishra, the complainant,
Shailendra Kumar was directed to submit the
details of the account for the Assessment
Year 2003-04 and similar notice was issued
for the Assessment Year 2002-03 and the
details of the account were to be submitted by
24.12.2003. He said that till 27.12.2006, no
assessment order was passed in respect of the
complainant, proprietor of M/s Kashyap
Trading Company for the Assessment Years
2003-04 and 2004-05 and it was the accusedappellant, who was the competent authority
to pass the assessment order. This witness
proved several documents filed on record by
the CBI.

26. P.W.10, Ajit Kumar Jain, Retired
Additional Income Tax Commissioner in
his deposition said that he was promoted on
the post of Additional Income Tax
3 All. Om Prakash Vimal Vs. State
1243
Commissioner
in
January,
2005
and
remained posted in Lucknow on the said
post till 31.8.2008. He was given the
additional charge of Income Tax Range,
Gonda in November, 2005, which remained
under him till 2007. The Income Tax
Office, Basti comes within the range of
Gonda. He further said that the accusedappellant got the charge of the Income Tax
Officer, Basti on 30.6.2005 after Sri
Nimish Mishra. He said that for the
Assessment Years 2003-04 and 2004-05, it
was the accused-appellant as an Income
Tax Officer, Basti, who was competent to
pass the order. Till the accused-appellant
was arrested by the CBI in the trap
proceedings, he did not pass any order for
the Assessment Years 2003-04 and 200405 in respect of the proprietorship firm of
the complainant.

27. D.W.-1, Hari Ram said that at the
relevant time he was posted as Notice
server in the Income Tax Office, Bassti.

28. D.W.-2. Nand Kumar, who was
posted as Senior Private Secretary at the
relevant time, proved the signature of Dr.
A.K. Singh, Income Tax Commissioner,
Gorakhpur.

Submissions:-

29. Sri Nandit Srivastava, learned
Senior Advocate, assisted by S/Sri Pranjal
Krishna, J.P. Awasthi, Mohd. Ibrahim
Khan and Anshuman Srivastava for the
accused-appellant has submitted that as per
the prosecution case, seven persons were
present on the spot when the trap
proceedings were conducted, who might
have heard the conversation between the
accused-appellant and the complainant, but
they were not examined during trial by the
CBI. The complainant had clear motive to
falsely implicate the accused-appellant in
order to escape from payment of heavy
income tax and penalty. Learned trial court
had ignored the evidence brought on record
to show that the accused-appellant had no
motive to demand and accept the bribe
amount
from
the
complainant.
The
complainant was a defaulter of the Income
Tax Department as he evaded the tax. The
predecessor Income Tax Officer had
imposed penalty and intimated the recovery
proceedings
against
the
complainant.
Therefore, the accused-appellant was not in
a position to recall or review the said order
passed by the predecessor in office. The
accused-appellant was not in a position to
pass the assessment order for nil payment
of income tax. He has further submitted
that the learned trial court had failed to
appreciate the evidence of P.Ws.6, 9 and
10, who were the Income Tax Officers and
deposed in respect of the orders imposing
penalties on the complainant.

30. Learned counsel for the accusedappellant has further submitted that the
definite case of the accused-appellant that
while he was coming to office on foot from
his residence after having lunch, the
complainant, who was on motorcycle,
entered the office of the accused-appellant
and kept the bribe amount in the drawer of
the office table of the accused-appellant,
should not have been brushed aside by the
learned trial court. It is also submitted that
even as per the evidence of P.W.-2, when
the complainant met the accused-appellant
on the way to his office from his residence,
the complainant requested him to reach the
residence. However, the accused-appellant
asked the complainant to meet him in the
office. He, therefore, has submitted that the
prosecution story that the accused-appellant
asked the complainant to give the bribe
amount at his residence, falls to ground.
1244 INDIAN LAW REPORTS ALLAHABAD SERIES

31. Learned counsel for the accusedappellant has further submitted that the
alleged bribe amount was recovered from
the drawer of the office table of the
accused-appellant. The retiring room of the
accused-appellant was vacant during lunch
as he went to his residence for having lunch
and the possibility of putting the bribe
amount by the complainant in the drawer of
the office table of the accused-appellant
during this period, was not a mere
suspicion, but was a reality.

32. Learned counsel for the accusedappellant has further submitted that the
principle Falsus in Uno Falsus in Omnibus
was ignored by the learned trial court in
spite of the fact that most of the
prosecution witnesses did not depose
truthfully. The prosecution had failed to
prove the case against the accusedappellant beyond reasonable doubt and the
principle "It is better that ten guilty persons
escape than that one innocent suffer" was
ignored by the learned trial court while
convicting and sentencing the accusedappellant. When there was no motive for
demand of bribe amount by the accusedappellant, the conviction and sentence of
the accused-appellant in absence of any
evidence of demand is unjustified. He, has,
therefore, prayed for allowing the appeal
and acquitting the accused-appellant.

33. On the other hand, Sri Shiv P.
Shukla, learned counsel for the CBI has
submitted that the accused-appellant kept
the file of the complainant for the
Assessment Years 2003-04 and 2004-5
pending since June, 2006 without any order
on the order-sheet with mala fide intention
to demand illegal gratification from the
complainant to make the assessment for nil
tax. The income tax returns for the
Assessment Years 2003-04 and 2004-05
were filed on 26.9.2005 and after notice
was issued, relevant papers were submitted
on 7.12.2006, but the assessment was not
finalised. It is not in dispute that the
accused-appellant was in the capacity to
finalise the assessment of M/s Kashyap
Trading Company, a proprietorship firm of
the complainant for the Assessment Years
2003-04 and 2004-05.

34.

The
evidence
of
P.W.-2,
Shailendra Kumar, the complainant; P.W.-
3, Ram Shabd Verma, shadow witness;
P.W.-4, V. Dixit, T.LO. and P.W.-5, Junail
Ibad Khan, independent witness, would go
to prove beyond reasonable doubt that the
accused-appellant demanded and accepted
the bribe amount of Rs.50,000/- from the
complainant, which was recovered from the
drawer of the office table of the accusedappellant. He has, therefore, submitted that
the
learned
trial
court
after
detail
examination of the evidence, found the case
fully proved against the accused-appellant
for offences under Sections 7 and 13(2)
read with Section 13(1)(d) of P.C. Act for
which the accused-appellant was convicted
and sentenced by the learned trial court as
mentioned above. It is submitted that once
the demand and acceptance had been
proved and the bribe money was recovered,
charge against the accused-appellant got
fully proved beyond reasonable doubt and,
therefore, the appeal is liable to be
dismissed.

35. I have considered the submissions
advanced on behalf of the learned counsel
for the parties and perused the judgment
and order passed by the learned trial court.

Conclusion:-

36. The question which falls for
consideration in the present appeal, is
3 All. Om Prakash Vimal Vs. State
1245
whether the prosecution had been able to
establish demand and acceptance of illegal
gratification of Rs.50,000/- by the accusedappellant from the complainant by leading
cogent
and
credible
evidence.
The
complainant in his evidence had deposed
regarding demand and acceptance of the
bribe amount and he had also deposed in
respect of the pre-trap and post-trap
proceedings and, the testimony of the
complainant, P.W.-2 was fully corroborated
by Ram Shabd Verma, P.W.-3, shadow
witness.
P.W.-5,
Junail
Ibad
Khan,
independent witness, also corroborated the
testimony of P.Ws.2 and 3 regarding
demand and acceptance of the bribe amount.
The hundred currency notes of Rs.500/- each,
total Rs.50,000/-, were recovered from the
drawer of the office table of the accusedappellant and the numbers of the notes would
match the number of notes written down in the
pre-trap proceedings.

37. In view thereof, this Court does not
find any credence in the submission of the
learned counsel for the accused-appellant that
recovery was not made from the accusedappellant.
Once
the
accused-appellant
accepted the bribe amount and he kept it in the
drawer of the office table, which was of the
accused-appellant, the recovery from the
drawer of the office table of the accusedappellant, is recovery from the accusedappellant himself.

38. Considering the evidence on record,
I am of the view that the prosecution was able
to prove the demand and acceptance of the
bribe amount of Rs.50,000/- from the
complainant, P.W.-2 by the accused-appellant,
which was recovered from the drawer of the
office table of the accused-appellant.

39. It is well settled law that to record
the conviction under Sections 7 and 13 of
the P.C. Act, the demand and acceptance of
illegal gratification by the accused public
servant should be proved by cogent and
credible evidence. It is also settled law that
mere possession and recovery of money
without proof of demand by the accused
does not constitute an offence under
Sections 7 and 13(2) read with 13(1)(d) of
the PC Act, 1988 (P. Satyanarayana
Murthy Vs District Inspector of Police,
State of Andhra Pradesh and another,
(2015) 10 SCC 152).

40. Term "demand" does not find
place under P.C. Act, 1988, but it has
virtually been inserted in the statute by
interpretative process. Section 20 of the
P.C.
Act
derives
certain
statutory
presumption of guilt. Section 7 of the P.C.
Act has to be read in conjunction with
Section 20 P.C. Act, 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
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
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 interference of corruption may fairly be
drawn."

41. Plain reading with the words of
Section 20 of the P.C. Act, would mean
that if it can be proved that a public servant
has received gratification, Section 20 of the
P.C. Act brings in statutory presumption
that he has received the same with an
illegal motive as laid down in Section 7 of
the Act. This shifts the burden of proof to
the accused, who is required to prove that
what has been received, is a valuable
consideration
and
not
an
illegal
gratification.

42. Constitution Bench of the
Supreme Court in a recent judgment in the
case of Neeraj Dutta vs State, (2022) SCC
OnLine SC 1724, has held that to constitute
an
offence
under
Sections
7
and
13(2)/13(1)(d) (i) and (ii) of the P.C. Act,
1988, if a bribe giver makes an offer to pay
without there being any prior demand of
the same by a public servant and public
servant accepts and receives the bribe, it
would be a case of acceptance under
Section 7 of the P.C. Act, 1988. If a public
servant himself makes a demand and
demand is accepted by bribe giver and
bribe is paid by the bribe giver, it is a case
of obtainment under Section 13(1)(d)(i) and
13(1)(d)(ii) of the P.C. Act.

43. It has been held that if the
foundational facts are proved, presumption
of
receipt
of
obtainment
of
illegal
gratification would be made. If such a
presumption of fact would be raised, it is
subject to rebuttal by the accused as the
presumption under Section 20 of the PC.
Act is not an inviolable presumption.
However, if the presumption is not
rebutted, the offence gets proved as
provided under Section 20 of the P.C. Act.

44. In paragraphs 4 and 5 of the
aforesaid
judgment,
ingredients
to
constitute an offence under Sections 7 and
13(1)(d) of the P.C. Act, 1988 have been
mentioned. Paragraphs 4 and 5 of the
aforesaid judgment, which are relevant,
wound extracted hereunder:-

"4. The following are the ingredients
of Section 7 of the Act:

i) the accused must be a public servant
or expecting to be a public servant;

ii) he should accept or obtain or
agrees to accept or attempts to obtain from
any person;

iii) for himself or for any other person;

iv) any gratification other than legal
remuneration;

v) as a motive or reward for doing or
forbearing to do any official act or to show
any favour or disfavour.

5. Section 13(1)(d) of the Act has the
following ingredients which have to be
3 All. Om Prakash Vimal Vs. State
1247
proved before bringing home the guilt of a
public servant, namely, -

(i) the accused must be a public
servant;

(ii) by corrupt or illegal means,
obtains for himself or for any other person
any valuable thing or pecuniary advantage;
or by abusing his position as public
servant, obtains for himself or for any other
person any valuable thing or pecuniary
advantage; or while holding office as
public servant, obtains for any person any
valuable thing or pecuniary advantage
without any public interest.

(iii) to make out an offence under
Section 13(1)(d), there is no requirement
that the valuable thing or pecuniary
advantage should have been received as a
motive or reward.

(iv) an agreement to accept or an
attempt to obtain does not fall within
Section 13(1)(d).

(vi) mere acceptance of any valuable
thing or pecuniary advantage is not an
offence under this provision.

(vii) therefore, to make out an offence
under this provision, there has to be actual
obtainment.

(viii) since the legislature has used
two different expressions namely "obtains"
or "accepts", the difference between these
two must be noted."

45. In paragraph 74 of the aforesaid
judgment, the law for establishing guilt of
the accused/public servant under Sections 7
and 13(1)(d) has been summarized, which
would read as under:-

"74. 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.