# Raj Kumar @ Raj Kumar Srivastava v. State

- **Citation:** (2022) 11 ILRA 1160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-11
- **Case number:** Crl. Appeal No. 953 of 2014
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-raj-kumar-srivastava-v-state-47977
- **Pages:** 7

## Headnote

Criminal Law- Prevention of Corruption Act,
1988- Section 27 -Section 13(1)(d) and
13(2)- It is well settled that demand and
acceptance of illegal gratification is a sine
qua non to prove the offence of bribe under
Section 13(1)(d) of Prevention of Corruption
Act-Mere recovery of the amount would not
prove the charges against the accused
which was said to have been paid by way of
illegal gratification. If the Court finds that
there is no evidence to prove payment of
bribe or to show that the accused had
voluntarily accepted the money knowing it
to be bribe, the conviction cannot be
sustained-From the evidence lead by the
CBI particularly considering the fact of
recovery of foreign currency and the
evidence
of
two
passengers
whose
testimony has remained unshaken, this
Court is of the view that the offence under
Section 13(1)(d) of Prevention of Corruption
Act is proved against the appellants.

Where the prosecution fails to prove the demand
and acceptance of illegal gratification, then mere
recovery of the amount will not make out any
offence but where the prosecution witnesses prove
the factum of demand and acceptance of bribe
then the said evidence is sufficient to bring home
the charge against the accused.

Quantum of Punishment- Proportionate
Punishment- The special circumstance i.e.
22 years of time period having been lapsed
from the date of the alleged offence and
their official positions which they held at the
time of commission of offence, this Court is
of the view that the minimum sentence
should be reduced to the sentence already
undergone with a fine.

The long delay in deciding the appeal is one of
the mitigating factors to take into consideration
on the point of the quantum of sentence and
the same is to be reckoned as a factor for
reducing the sentence to the period already
undergone. (Para 12, 17, 20, 22)

Criminal
Appeal
rejected,
sentence
modified. (E-3)

Case Law/ Judgements relied upon:-

## Text

1160 INDIAN LAW REPORTS ALLAHABAD SERIES
has deposited the fine as aforesaid, he need
not be taken into custody.

40. The office is directed to send the
certified copy of this judgment along with
the trial court records to the trial court
concerned for necessary information and
follow-up action.

41. Office is directed to pay a sum of
Rs.8,000/- for assistance of the Court to
learned Amicus Curiae within two months
from today.

42. The trial court shall communicate
this judgement to the accused-appellant
within a period of one week from the date
of receipt of the same.
----------
(2022) 11 ILRA 1160
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.11.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Crl. Appeal No. 953 of 2014
with Crl. Appeal Nos. 959 of 2014 and 948 of
2014

Raj Kumar @ Raj Kumar Srivastava
 ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
Nandit Kumar Srivastava, Pranjal Krishna,
Tapeshwar Kumar Maurya

Counsel for the Respondents:
Brijeshwar Nath, Shiv P. Shukla

Criminal Law- Prevention of Corruption Act,
1988- Section 27 -Section 13(1)(d) and
13(2)- It is well settled that demand and
acceptance of illegal gratification is a sine
qua non to prove the offence of bribe under
Section 13(1)(d) of Prevention of Corruption
Act-Mere recovery of the amount would not
prove the charges against the accused
which was said to have been paid by way of
illegal gratification. If the Court finds that
there is no evidence to prove payment of
bribe or to show that the accused had
voluntarily accepted the money knowing it
to be bribe, the conviction cannot be
sustained-From the evidence lead by the
CBI particularly considering the fact of
recovery of foreign currency and the
evidence
of
two
passengers
whose
testimony has remained unshaken, this
Court is of the view that the offence under
Section 13(1)(d) of Prevention of Corruption
Act is proved against the appellants.

Where the prosecution fails to prove the demand
and acceptance of illegal gratification, then mere
recovery of the amount will not make out any
offence but where the prosecution witnesses prove
the factum of demand and acceptance of bribe
then the said evidence is sufficient to bring home
the charge against the accused.

Quantum of Punishment- Proportionate
Punishment- The special circumstance i.e.
22 years of time period having been lapsed
from the date of the alleged offence and
their official positions which they held at the
time of commission of offence, this Court is
of the view that the minimum sentence
should be reduced to the sentence already
undergone with a fine.

The long delay in deciding the appeal is one of
the mitigating factors to take into consideration
on the point of the quantum of sentence and
the same is to be reckoned as a factor for
reducing the sentence to the period already
undergone. (Para 12, 17, 20, 22)

Criminal
Appeal
rejected,
sentence
modified. (E-3)

Case Law/ Judgements relied upon:-

1. C.K. Damodaran Nair Vs Govt. of India,
(1997) 9 SCC 477

2. A. Subair Vs St. of Ker., (2009) 6 SCC 587
11 All. Raj Kumar @ Raj Kumar Srivastava Vs. State
1161
3. St. of Guj. Vs Navinbhai Chandrakant Joshi,
(2018) SCC Online SC 699:AIR 1028 SC 3345

4. P. Satyanarayan Murthy Vs Dist. Inspr. of
Police, St. of A.P, (2015) 10 SCC 152

5. V.K. Verma Vs CBI, (2014) 3 SCC 485

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

1. These criminal appeals have been
filed under Section 27 of the Prevention of
Corruption Act, 1988 read with Section
374(2) Cr.P.C. against the judgment and
order dated 21.7.2014 passed by the
learned Special Judge, Anti-Corruption,
West, Uttar Pradesh, Lucknow in Criminal
Case No.01 of 2011 (CBI Vs. Udai Pratap
Bhartiya and three others) under Section
120-B IPC read with Section 13(1)(d) and
13(2) of Prevention of Corruption Act,
arising
out
of
Crime
No.RC0062000A0017/2000, Police Station
CBI/ACB,
Lucknow,
whereby
the
appellants have been convicted for offence
under Section 120-B IPC read with Section
13(1)(d) and 13(2) of Prevention of
Corruption Act, 1988 and sentenced them
four years rigorous imprisonment with fine
of Rs.40,000/- each and in default of
payment of fine, further one year additional
rigorous imprisonment.

2. The prosecution case, in brief, is
that a secret information was received that
custom officials and the bank officials
posted at Amausi Airport were indulging in
corruption practices and were demanding
and accepting the bribe from the passengers
coming from abroad. On this information,
Sri Jayant Kashmiri, Inspector, CBI,
Lucknow on 23.10.2000 constituted a team
including the CBI officials and two
independent witnesses, Sri Arun Srivastava,
Law Officer, Circle Office, Canara Bank
and R.C. Srivastava, Manager Overseas
Banking, Main Branch, State Bank of
India, Lucknow. The team reached to the
Amausi
Airport
at
0040
hours
on
23.10.2000.
After
sometime,
Flight
No.IAIC 884 reached Amausi Airport,
Lucknow from Sharjah. The CBI officials
reached inside the Airport and started
keeping eye on the custom officials at
custom gate and the bank officials working
at the foreign exchange counter of the
Allahabad Bank. The team members
noticed that the custom officials and the
bank officials were allowing the passengers
to go out of the gate after taking money
from them. The team members reached to
the custom counters and the bank counters
and, on search from Sri U.P. Bhartiya,
Superintendent, Air Custom 3205 Dirham
and Rs.12,770/- in cash, from appellantSunil Kumar, who was employed as Sepoy,
230 Dirham and Rs.80/-, from appellantRajkumar, Sepoy, 2000 Riyal, 175 Dirham
and Rs.3,050/-, from appellant-S.S. Pandey,
Driver, 15 Dirham and Rs.2,790/-, from
Ashutosh Mishra, Manager-cum-In-charge,
Allahabad Bank, Custom Counter, Amausi
Airport 18390 Dirham, 360 U.S. Dollar and
Rs.11,310/- were recovered. A seizure
memo was prepared.

3. The appellants and the Managercum-In-charge, Allahabad Bank, Custom
Counter could not give any explanation for
having foreign currency and cash in their
possession. The CBI, thereafter, registered
a case on 23.10.2000 itself as RC
17(A)/2000/CBI.

4. It was noticed that in the said flight
IAIC 884, there were 113 passengers and
out of them, statements of 17 passengers
were taken and five passengers specifically
stated that the custom officials had
demanded money from them. Independent
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses, R.C. Srivastava and Arun
Srivastava were examined in the Court,
who proved the surprise inspection and the
seizure memo. The CBI after completing
the investigation, filed charge sheet and on
4.2.2013 charges were framed.

4. Since U.P. Bhartiya, appellant had
died during the pendency of the appeal, his
appeal being Criminal Appeal No.947 of
2014 got abated and a separate order in this
respect has been passed.

5. The CBI to prove its case examined
as many as 15 witnesses including the two
passengers, who came from Flight No.IAIC
884. Chhoteylal (P.W.-8) and Mohd. Ubaid
(P.W.-9). Several documentary and material
evidence were produced in support of the
prosecution case. On behalf of the defence,
seven witnesses were examined.

6. Appellants could not deny the
possession of foreign currency and cash in
their possession. They also could not offer
any explanation for possession of the
foreign currency. Independent witnesses,
R.K. Srivastava (P.W.-3) and Ramesh
Chandra Srivastava (P.W.-4) have proved
the foreign currency and the Indian
currency recovered from the appellants.
Two passengers Chhoteylal (P.W.-8) and
Mohd. Ubaid (P.W.-9) have specifically
stated that the custom officials posted at the
custom gate had demanded money for their
exit from the gate.

7. The trial court has extracted the
evidences of all the witnesses and for the
sake of brevity, the same is not being
reproduced herein. The trial court after
considering the entire facts and the material
evidence available on record, has convicted
and sentenced the appellants as mentioned
above.

8. Sri Nandit Srivastava, learned
Senior Counsel assisted by Sri Pranshu
Agarwal and Sri Shiv Shankar Singh,
learned counsel for the appellants submits
that the prosecution has failed to prove that
there was a demand of money by the
appellants from the passengers and in
absence of proof of a demand or request of
a valuable thing or pecuniary advantage,
offence
under
Section
13(1)(d)
of
Prevention of Corruption Act cannot be
held to be established. He further submits
that the chain does not get completed as
there was no demand and no one had seen
accepting money by the appellants and,
only on the basis of the recovery made,
they have been prosecuted and the learned
trial court has held them guilty for offences
under Section 120-B IPC read with Section
13(1)(d) and 13(2) of Prevention of
Corruption Act. He, therefore, submits that
the learned trial court has erred in law in
not appreciating that unless and until the
demand, acceptance and recovery are
proved, the appellants could not have been
held guilty.

9. On the other hand, Sri Shiv P.
Shukla, learned counsel for the CBI
submits
that
from
the
evidence
of
Chhoteylal (P.W.-8) and Mohd. Ubaid
(P.W.-9), it is amply clear that the
appellants and the deceased U.P. Bhartiya
had demanded money in discharge of their
official function from the passengers for
allowing them to cross the custom gate and
only after receiving the money, they would
allow the passengers to cross the custom
gate. He further submits that the appellants
not only demanded money, but also
accepted the pecuniary advantage for
themselves and there has been recovery
from them, which they have not denied. He
also submits that all the four appellants
used to demand money from the passengers
11 All. Raj Kumar @ Raj Kumar Srivastava Vs. State
1163
coming from abroad and, thereafter, they
were dividing the money collected among
themselves in proportion.

10. Learned counsel for the CBI
further submits that the offence under
Section 120-B IPC read with Section
13(1)(d) and 13(2) of Prevention of
Corruption
Act
got
proved
beyond
reasonable doubt by leading cogent and
credible evidence by the CBI and the
impugned judgment and order, which is a
well reasoned order in detail, has been
passed after considering the evidence on
record, which is not likely to be interfered
with.

11. I have considered the submissions
advanced on behalf of the learned counsel
for the parties and perused the record.

12. Two passengers, Chhoteylal
(P.W.-8) and Mohd. Ubaid (P.W.-9), from
whom
money
was
demanded,
have
categorically deposed that the custom
officials posted on duty, demanded money
from them and they would allow the
passengers to cross the custom gate only
after accepting the money from them.
These two witnesses were also allowed to
cross custom gate only they paid the money
demanded by the appellants.

13. Section 13(1)(d) and 13(2) of
Prevention of Corruption Act would read as
under:-

"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

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

(e) .....

(2) Any public servant who commits
criminal misconduct shall be punishable
with imprisonment for a term which shall
be not less than3[four years] but which
may extend to 4[ten years] and shall also
be liable to fine."

14. The essential ingredients of
Section 13(1)(d) of the Prevention of
Corruption Act are:

(i) that he should have been a public
servant;

(ii) that he should have used corrupt or
illegal means or otherwise abused his
position as such public servant, and

(iii) that he should have obtained a
valuable thing or pecuniary advantage for
himself or for any other person.

15. The Supreme Court in the case of
C.K. Damodaran Nair Vs. Govt. of
India, (1997) 9 SCC 477 had occasion to
consider the word "obtain" used in Section
5(1)(a) of Prevention of Corruption Act,
1947, which is para materia of Section
13(1)(d) of Prevention of Corruption Act,
1988 and, in paragraph 12 of the said
judgement, it has been held as under:-

"12. The position will, however, be
different so far as an offence under Section
5(1)(d) read with Section 5(2) of the Act is
1164 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned. For such an offence prosecution
has to prove that the accused "obtained"
the valuable thing or pecuniary advantage
by corrupt or illegal means or by otherwise
abusing his position as a public servant
and that too without the aid of the statutory
presumption under Section 4(1) of the Act
as it is available only in respect of offences
under Section 5(1)(a) and (b) -- and not
under Section 5(1)(c), (d) or (e) of the Act.
"Obtain"
means
to
secure
or
gain
(something) as the result of request or
effort (Shorter Oxford Dictionary). In case
of obtainment the initiative vests in the
person who receives and in that context a
demand or request from him will be a
primary requisite for an offence under
Section 5(1)(d) of the Act unlike an offence
under Section 161 IPC, which, as noticed
above, can be, established by proof of
either "acceptance" or "obtainment".

16. The Supreme Court in the case of
A. Subair Vs. State of Kerala, (2009) 6
SCC 587 while placing reliance on the
judgment of C.K. Damodaran Nair (supra)
in paragraph 15 held as under:-

"15. In C.K. Damodaran Nair v. Govt.
of India [(1997) 9 SCC 477 : 1997 SCC
(Cri) 654] this Court had an occasion to
consider the word "obtained" used in
Section 5(1)(d) of the Prevention of
Corruption
Act,
1947
[now
Section
13(1)(d) of the Act, 1988], and it was held:
(SCC p. 483, para 12)

"12. The position will, however, be
different so far as an offence under Section
5(1)(d) read with Section 5(2) of the Act is
concerned. For such an offence prosecution
has to prove that the accused ''obtained' the
valuable thing or pecuniary advantage by
corrupt or illegal means or by otherwise
abusing his position as a public servant
and that too without the aid of the statutory
presumption under Section 4(1) of the Act
as it is available only in respect of offences
under Sections 5(1)(a) and (b)--and not
under Sections 5(1)(c), (d) or (e) of the Act.
''Obtain'
means
to
secure
or
gain
(something) as the result of request or
effort (Shorter Oxford Dictionary). In case
of obtainment the initiative vests in the
person who receives and in that context a
demand or request from him will be a
primary requisite for an offence under
Section 5(1)(d) of the Act unlike an offence
under Section 161 IPC, which, as noticed
above, can be, established by proof of
either ''acceptance' or ''obtainment'."

The legal position is no more res
integra that primary requisite of an offence
under Section 13(1)(d) of the Act is proof of
a demand or request of a valuable thing or
pecuniary advantage from the public
servant. In other words, in the absence of
proof of demand or request from the public
servant for a valuable thing or pecuniary
advantage, the offence under Section
13(1)(d) cannot be held to be established."

17. It is well settled that demand and
acceptance of illegal gratification is a sine
qua non to prove the offence of bribe under
Section
13(1)(d)
of
Prevention
of
Corruption Act as held by the Supreme
Court in the case of State of Gujarat Vs.
Navinbhai Chandrakant Joshi, (2018)
SCC Online SC 699:AIR 1028 SC 3345.
Mere recovery of the amount would not
prove the charges against the accused
which was said to have been paid by way
of illegal gratification. If the Court finds
that there is no evidence to prove payment
of bribe or to show that the accused had
voluntarily accepted the money knowing it
to be bribe, the conviction cannot be
sustained. P. Satyanarayan Murthy Vs.
District Inspector of Police, State of
Andhra Pradesh, (2015) 10 SCC 152.
11 All. Raj Kumar @ Raj Kumar Srivastava Vs. State
1165

18. At this stage, Sri Nandit
Srivastava, learned Senior Counsel for the
appellants submits that at the relevant time,
the minimum sentence under Section 13(2)
of Prevention of Corruption Act was one
year which could have been extended upto
seven years. The appellants are Sepoys and
Driver. The offence allegedly took place in
the year 2000 and 22 long years have gone
bye since then. He, therefore, submits that
considering the judgment in the case of
V.K. Verma Vs. Central Bureau of
Investigation, (2014) 3 SCC 485, this
Court may reduce the substantive sentence
to the period already undergone and may
impose the fine taking into the special
circumstances.

19. The Supreme Court in the case of
V.K. Verma (supra) held as under:-

"8. The long delay before the courts in
taking a final decision with regard to the
guilt or otherwise of the accused is one of
the mitigating factors for the superior
courts to take into consideration while
taking a decision on the quantum of
sentence. As we have noted above, the FIR
was registered by CBI in 1984. The matter
came before the Sessions Court only in
1994. The Sessions Court took almost ten
years to conclude the trial and pronounce
the judgment. Before the High Court, it
took another ten years. Thus, it is a
litigation of almost three decades in a
simple trap case and that too involving a
petty amount.

9. In Ashok Kumar v. State (Delhi
Admn.) [(1980) 2 SCC 282 : 1980 SCC
(Cri) 426] , the commission of offence of
theft was committed in 1971 and the
judgment of this Court was delivered in
1980. The conviction was under Section
411 IPC. This Court having regard to the
purpose of punishment and "the long
protracted litigation", reduced the sentence
to the period already undergone by the
convict.

10. In Sharvan Kumar v. State of
U.P. [(1985) 3 SCC 658 : 1985 SCC (Cri)
437] , the commission of offence was in
1968 and the judgment was delivered in
1985. The conviction was under Sections
467 and 471 IPC. In that case also, the
long delay in the litigation process was one
of the factors taken into consideration by
this Court in reducing the sentence to the
period already undergone.

11. In Ajab v. State of Maharashtra
[1989 Supp (1) SCC 601 : 1989 SCC (Cri)
602] also, this Court had an occasion to
examine the similar situation. The offence
was committed in 1972 and this Court
delivered the judgment in 1989. The
conviction was under Section 224 read with
Section 395 IPC. In that case also "passage
of time was reckoned as a factor for
reducing the sentence to the period already
undergone". This Court in that case, while
reducing
the
substantive
sentence,
increased the fine holding that the same
would meet the ends of justice.

12. The appellant is now aged 76. We
are informed that he is otherwise not
keeping in good health, having had also
cardiovascular problems. The offence is of
the year 1984. It is almost three decades
now. The accused has already undergone
physical incarceration for three months and
mental incarceration for about thirty years.
Whether at this age and stage, would it not
be economically wasteful, and a liability to
the State to keep the appellant in prison, is
the question we have to address. Having
given thoughtful consideration to all the
aspects of the matter, we are of the view
that the facts mentioned above would
certainly be special reasons for reducing
the substantive sentence but enhancing the
fine, while maintaining the conviction.
1166 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Accordingly, the appeal is partly
allowed. The substantive sentence of
imprisonment is reduced to the period
already undergone. However, an amount of
Rs 50,000 is imposed as fine. The appellant
shall deposit the fine within three months
and, if not, he shall undergo imprisonment
for a period of six months. On payment of
fine, his bail bond will stand cancelled."

20. From the evidence lead by the CBI
particularly considering the fact of recovery
of foreign currency and the evidence of two
passengers whose testimony has remained
unshaken, this Court is of the view that the
offence under Section 13(1)(d) of Prevention
of Corruption Act is proved against the
appellants.

21. So far the appeals on merit are
concerned, there is no merit in the present
appeals, which are hereby dismissed and
the conviction of the appellants is upheld.

22.

However,
considering
the
judgement of the Supreme Court in the case
of
V.K.
Verma
(supra),
the
special
circumstance i.e. 22 years of time period
having been lapsed from the date of the
alleged offence and their official positions
which they held at the time of commission
of offence, this Court is of the view that the
minimum sentence should be reduced to
the sentence already undergone with a fine
of Rs.35,000/- to be deposited by each
appellant within a period of four weeks
from today in favour of Armed Forces
Battle
Casualties Welfare
Fund,
S/B
Account
No.90552010165915,
Canara
Bank, South Block, Defence Headquarters,
New
Delhi-110011,
IFSC
Code:CNRB0019055. If the appellants fail
to deposit the fine as directed above, they
shall undergo the sentence as awarded by
the learned trial court.
----------
(2022) 11 ILRA 1166
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.10.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Crl. Appeal No. 1257 of 2020

Susheela Devi ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Abdul Mazeed, Sri Kuldeep Mishra, Sri Nazrul
Islam Jafri(Senior Adv.)

Counsel for the Opp. Party:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section
154-
Hostile
Witness-
The
testimony of hostile witnesses cannot be
thrown away just on the basis of the fact
that
they
have
not
supported
the
prosecution
case
and
were
crossexamined
by
the
prosecutor.
The
testimony of the hostile witnesses can be
relied upon to the extent it supports the
prosecution case. Needless to say that the
testimony of hostile witnesses should be
scrutinized
meticulously
and
very
cautiously.

Settled law that the entire testimony of a hostile
witness cannot be discarded but that part,
which supports the case of the prosecution, has
to be considered.

Indian Evidence Act, 1872- Section 32-
The court comes to the conclusion that the
dying declaration is true and reliable, has
been recorded by a person at a time when
the deceased was fit physically and
mentally to make the declaration and it
has
not
been
made
under
any
tutoring/duress/prompting; it can be the