# Shubhansh Chand Srivastava v. State of U.P

- **Citation:** (2023) 3 ILRA 668
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-19
- **Case number:** Criminal Appeal No. 564 of 2021
- **Bench:** Dinesh Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shubhansh-chand-srivastava-v-state-of-u-p-49231
- **Pages:** 11

## Headnote

Law-The
Prevention
of
Corruption Act, 1988-Sections 7, 13(1)(d)
&
13(2)-Accused-appellant
demanded
bribe from the complainant for ensuring
preparation
of
outstanding
pay
bill/payments-Conviction U/s 7 and 13(2)
r/w 13(1) (d) of The P.C Act- Minor
discrepancy would not destroy the entire
case
of
the
prosecution
regarding
demand, acceptance and recovery of
bribe-Demand and acceptance proved-
Amount was recovered from the drawer of
the office table of the accused- To record
a conviction under Section 7 and 13,
proper proof of demand and acceptance of
illegal gratification by the accused public
servant is necessary-Mere possession and
recovery of money without proof of
demand
by
the
accused
does
not
constitute an offence- 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 Section 7,
13(2)/13(1)(d) of the Act based on other
evidence adduced by the prosecution.

Appeal dismissed. (E-15)

List of Cases cited:

## Text

668 INDIAN LAW REPORTS ALLAHABAD SERIES

44. The Appeal is dismissed. The
judgment of trial court is upheld. The appeal
against appellant No. 4 Fareed Khan, who is
said to have been died on 06.09.2018 is
dismissed as abated vide order dated
24.11.2022. The appellant Nos. 1, 2 and 3,
namely, Devi Dayal, Arjun and Ambika are
on bail. They shall surrender before the court
concerned within one month from the date of
judgment and shall be sent to jail to serve out
the remaining sentence. Learned trial court
shall prepare the conviction warrant and sent
them to jail.

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

46. Certified copy of this judgment
along with the lower court record be sent to
the trial court concerned for necessary
information and compliance.
----------
(2023) 3 ILRA 668
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.12.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Appeal No. 564 of 2021

Shubhansh Chand Srivastava ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Nandit K. Srivastava, Anil Kumar Tripathi,
Anurag Shukla, H.B. Singh, Pritma Shastri,
Purnendu Chakravarti

Counsel for the Respondent:
Birshwr Nath, S.B. Pandey, Shiv P. Shukla

Criminal
Law-The
Prevention
of
Corruption Act, 1988-Sections 7, 13(1)(d)
&
13(2)-Accused-appellant
demanded
bribe from the complainant for ensuring
preparation
of
outstanding
pay
bill/payments-Conviction U/s 7 and 13(2)
r/w 13(1) (d) of The P.C Act- Minor
discrepancy would not destroy the entire
case
of
the
prosecution
regarding
demand, acceptance and recovery of
bribe-Demand and acceptance proved-
Amount was recovered from the drawer of
the office table of the accused- To record
a conviction under Section 7 and 13,
proper proof of demand and acceptance of
illegal gratification by the accused public
servant is necessary-Mere possession and
recovery of money without proof of
demand
by
the
accused
does
not
constitute an offence- 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 Section 7,
13(2)/13(1)(d) of the Act based on other
evidence adduced by the prosecution.

Appeal dismissed. (E-15)

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) of the Code of Criminal Procedure,
1973 (hereinafter referred to as ''CrPC')
read with Section 27 of the Prevention of
Corruption Act, 1988 (hereinafter referred
to as ''PC Act, 1988') has been filed by the
appellant against the judgment and order
dated 30.03.2012 passed by the Special
Judge, Anti Corruption (West), CBI,
Lucknow in Case No.14 of 1999 (State Vs.
Subhash Chand Srivastava) under Section 7
3 All. Shubhansh Chand Srivastava Vs. State of U.P.
669
and 13(2) read with 13(1)(d) of PC Act,
1988, arising out of R.C. No. 6(A)/1999,
P.S. CBI/SPE/ACB, Lucknow, whereby the
learned Special Judge has convicted and
sentenced the appellant for 6 months
rigorous imprisonment with fine of Rs.
1,500/- and 15 days additional simple
imprisonment, in default of fine for offence
under Section 7 of the PC Act, 1988 and 1
year rigorous imprisonment with fine of Rs.
1,500/- and 15 days additional simple
imprisonment, in default of fine for offence
under Section 13(2) read with Section
13(1)(d) of the PC Act, 1988. It was
directed that both the sentences would run
concurrently.

2. The appellant was posted and was
functioning as Office Superintendent-II in
establishment section in the office of
D.R.M. (Personnel), Northern Railways,
Lucknow. Complaint dated 30.01.1999 was
lodged by one Ram Kumar-IV who was
posted as Diesel Assistant, Alambagh
Office Goods Lobby, Mawaiyya, Northern
Railways, Lucknow alleging that the
accused-appellant
demanded
a
bribe
amount of Rs.2,000/- as illegal gratification
other than legal remuneration from Sri Ram
Kumar-IV
for
favour
of
ensuring
preparation
of
outstanding
pay
bill/payments for the months of October
and November, 1998. In the month of
October
and
November,
1998
the
complainant was on leave for 8 days and 12
days respectively.

3. On the basis of the complaint, an
FIR was lodged on the same day i.e.
13.01.1999 by the C.B.I. under Section 7 of
the PC Act, 1988. Verification was
conducted
by
Sri
Jayant
Kashmiri,
Inspector, C.B.I., Lucknow. The accusedappellant was caught red handed while
accepting Rs.1,000/- as first installment of
bribe amount on 14.01.1999 for sending the
charge memo in respect of pay bills of the
complainant.

4.

After
completion
of
the
investigation, the C.B.I. submitted chargesheet (Exh. Ka 36) under Sections 7 and
13(2)/13(1)(d) of the PC Act, 1988 against
the accused-appellant. The Court took
cognizance
on
the
charge-sheet
and
summoned the accused to face trial.
Learned trial court framed charges under
Sections 7 and 13(2)/13(1)(d) of the PC
Act, 1988 on 25.02.2002 against the
accused-appellant, which he pleaded not
guilty and claimed trial.

5. During the investigation, it was
noticed
that
preparation
of
leave
account/advice
note
relating
to
the
complainant, Ram Kumar for the months of
October and November, 1998 was pending
with the accused-appellant and for the
preparation of the same and to ensure
release of payment for the leave period in
favour of the complainant, the accusedappellant demanded a bribe amount of
Rs.2,000/-. The complainant who was not
willing to pay the said amount, lodged a
complaint with the C.B.I., and a trap was
laid and the accused-appellant was caught
red handed while demanding and accepting
the first installment of bribe of Rs.1,000/-
from the complainant. Bribe amount was
recovered from the drawer of the table of
the
accused-appellant.
The
accusedappellant managed to escape from the spot,
as such no hand wash could be taken place
at that time.

6. Prosecution to prove its case,
examined as many as 11 witnesses.
Statement of the accused-appellant was
recorded under Section 313 Cr.P.C. on
21.2.2012 and his plea was of denial. He
670 INDIAN LAW REPORTS ALLAHABAD SERIES
did not adduce any oral or documentary
evidence in his defence. Trial court after
analyzing in detail found the charge against
the accused-appellant regarding demand,
acceptance and recovery of bribe proved
beyond
reasonable
doubt,
and
thus,
convicted and sentenced the accusedappellant as mentioned above.

7. Sri Anurag Shukla, learned counsel
appearing for the accused-appellant has
submitted that though the prosecution has
failed to prove its case to bring charge
home against the accused-appellant but the
trial court has convicted and sentenced the
accused-appellant
without
properly
appreciating the evidence brought on
record.

8. It has been further submitted that the
trial court has framed following four points
for determination, which are essentially
ingredients of the offence for which the
accused-appellant was charged:-

"(i) Whether Sri Subhash Chand
Srivastava was in a position to do any favour
or disfavour to the complainant?

(ii) Whether Sri Subhash Chand
Srivastava demanded Rs.2000/- as illegal
gratification from the complainant for passing
his claim?

(iii) Whether accused accepted
Rs.1000/- as bribe from the complainant?

(iv) Whether the alleged amount of
Rs.1000/- as bribe, was recovered from the
accused?"

The learned trial Court in the entire
judgment has not answered any of the
aforesaid points framed for determination
and, therefore, impugned judgment is bad in
law and required to be set-aside.

9. It has been further submitted that
admittedly, there was no recovery of
Rs.1,000/- from the possession of the
accused-appellant. P.W.-2, the complainant
had failed to prove the place of recovery of
bribe of Rs.1,000/-. At one place the
complainant (P.W.-2) in his deposition had
said that he had kept the money in an
envelope in the almirah, however, at page
10, he had said that money in the envelope
was kept in a drawer of the seat of the
accused-appellant.

10. When the complainant reached to
the office of the accused-appellant, there
was no demand of bribe or illegal
gratification made by the accused-appellant
from him. The accused-appellant allegedly
asked the complainant "Kaise aye ho?"

11. Preparation of pay bills of the
complainant was to be done by Sri Ved
Prakash Tiwari, the then Head Clerk in the
office of D.R.M., Northern Railways,
Lucknow (P.W.-9), and the accusedappellant had no role in the same. He was
not responsible for keeping the leave
record. Evidence with regard to demand of
bribe
was
based
on
tape
recorded
conversation between the accused-appellant
and the complainant, however, the same
was not produced during the course of trial.

12. Independent witness, Satish
Kumar Srivastava (P.W.-3) had not seen
the drawer from which the bribe amount
was recovered as he was standing other
side of the table. Independent witness,
Kapil Nath Rastogi, who had allegedly
recovered the bribe, was not produced
during the trial.

13. It has been submitted that
prosecution had failed to prove that the
accused-appellant disappeared from the
alleged scene of incident instead he was
arrested on the spot. The trap team reached
3 All. Shubhansh Chand Srivastava Vs. State of U.P.
671
to the office of the accused-appellant
during lunch hour and the complainant
mischievously put the bribe amount in the
drawer of the table of the accusedappellant.

14. Sri Anurag Shukla, learned
counsel appearing for the accused-appellant
has submitted that it is the basic principle
of criminal jurisprudence that burden of
proof always lies on the prosecution, and it
never gets shifted. It is the onus only which
shifts from stage to stage. There can be no
conviction solely on the basis of allegation
unless the charge is proved by leading
cogent and credible evidence beyond
reasonable doubt.

15. The prosecution had failed to
prove any motive for demand of bribe from
the accused-appellant as the accusedappellant was not in position to give any
favour to the complainant. In the present
case, neither demand is proved nor
recovery was effected from the possession
of the accused-appellant.

16. On the other hand, Sri Shiv P.
Shukla, learned counsel appearing for the
C.B.I. has submitted that the prosecution
had been able to prove the charge against
the accused-appellant beyond reasonable
doubt. Learned trial court has considered
the evidence in detail and rightly held
that the accused-appellant had demanded
and accepted the bribe amount of
Rs.1,000/- from the complainant, which
was recovered from the drawer of the
table
of
the
accused-appellant.
He,
therefore, has submitted that considering
the evidence of the prosecution witnesses
and the documentary evidence led by the
prosecution, the appeal filed by the
accused-appellant
is
liable
to
be
dismissed.

17. For decision in the appeal, it
would be appropriate to take note of the
evidence brought by the prosecution in
support of its case against the accusedappellant.

18. P.W.-1, Sri S.M.N. Islam, who
was posted as Senior Divisional Personnel
Officer, Northern Railway, Lucknow, had
deposed before the court that the accusedappellant was posted as O.S.-II, in D.R.M.
(Personnel) Office, on a Class-III post. The
witness was competent to appoint and
remove the accused-appellant from the
post. The C.B.I. requested him for
sanctioning the prosecution of the accusedappellant. After considering the case, facts
and material brought before him, he passed
the order granting sanction for prosecution
of the accused-appellant. He proved the
sanction order, which was marked as Exh
Ka-1.

19. P.W.-2, Sri Ram Kumar-IV,
Diesel Asstt., Northern Railway Lucknow,
was the complainant of the case, who in his
testimony deposed that the complainant
was on leave for 20 days in the month of
October and November, 1988. He did not
get any salary for this period. He met the
accused-appellant
who
was
Dealing
Assistant on 31.01.1999 and asked him that
why his salary was deducted. The accusedappellant demanded Rs.2,000/- as bribe
from him. The complainant reached to the
office of C.B.I. and gave a complaint to the
S.P. He proved the complaint given by him
in the C.B.I. office, which was marked as
Exh. Ka-2. S.P. C.B.I. introduced him to
Sri Jayant Kashmiri and told him that
Jayant Kashmini would investigate his
case.
Jayant
Kashmiri
called
Satish
Srivastava from Insurance Company and
introduced the complainant to him. Jayant
Kashmiri gave him a tape recorder and sent
672 INDIAN LAW REPORTS ALLAHABAD SERIES
him and Satish Srivastava to D.R.M. Office
with a direction that the complainant
should record conversation between him
and the accused-appellant in tape recorder.
On the same day i.e. 13.01.1999 at around
2:15 to 2:30 P.W.-2 went with Satish
Srivastava to the office of the accusedappellant. The accused-appellant demanded
Rs. 2000/-, which was recorded in the tape
recorder. On demanding the bribe, the
witness said that as he had received only
one day's salary how he would give
Rs.2,000/- to the accused-appellant. When
the witness said that he would not be able
to pay Rs.2,000/-, then the accusedappellant said that he should pay Rs.2,000/-
in two installments of Rs.1,000/- each. It
was deposed that thereafter, he and Satish
Srivastava came back to the C.B.I. office
and gave the cassette and recorder to Jayant
Kashmiri. Jayant Kashmiri heard the
conversation, which was recorded and he
sealed the cassette and got the signatures of
the witnesses and others on the envelope.

20. P.W.-3, Satish Kumar Srivastava
who was posted as Stenographer, National
Insurance
Company,
Regional
Office,
Hazratganj, Lucknow, had deposed that on
13.01.1999 he got instructions from Sri
A.K. Verma, A.O. Vigilance Officer to
reach C.B.I. Office, Hazratganj where he
reached around 3-3:30 P.M. In C.B.I.
office, he met Jayant Kashmiri, the
complainant and Kapil Nath Rastogi. C.B.I.
officers introduced him to the complainant
and Kapil Nath Rastogi. He was told about
the complaint of Sri Ram Kumar (P.W.-2)
and he was given the complaint (Exh Ka-2)
for reading. To verify the complaint, the
witness
was
sent
along
with
the
complainant to D.R.M. Office where
Subhash Chandra was posted. Before
leaving for D.R.M. Office they were given
a tape recorder and empty cassette, which
was demonstrated to them. They were
instructed that after reaching D.R.M.
Office, tape recorder should be put on and
after conversation would get over, the Tape
Recorder was to be stopped. This witness
gave the testimony to the effect that when
they reached to the office of the accusedappellant, the complainant asked the
accused-appellant regarding his payment of
salary for the leave. The accused-appellant
asked him that whether he had brought
money or not, on which the complainant
explained his poverty and said that he
would arrange some money in 2-3 days on
which the accused-appellant said that
Rs.1,000/- should be given first and rest of
the amount should be given after the
complainant would receive his the salary.
Thereafter, they came back to the C.B.I.
office. On reaching back to the office, the
tape was played in which conversation
between the accused-appellant and the
complainant
was
recorded.
The
complainant after looking at the material
M.Exh-2 said that there were his signatures
on it.

21. P.W.-4, Sri Rajesh Kumar Shukla,
Senior Clerk, Senior Section Engineer,
Loco N.R., Lucknow, had deposed that he
was posted at the above mentioned post
since 1995 and was allowed the work of
preparing Absentee statement, compilation
of leave application, sick certificate and
fitness certificate of the employees. He had
proved
D26
(Ext.
Ka-18)
absentee
statement, which bears the name of
complainant i.e Ram Kumar-IV Diesel
Asstt. at serial no. 35. Further, he had
deposed about preparation of D-27 and D28, D-29 (Ex Ka-19, Ka-20 & Ka-21). He
also said that in absentee statement besides
duty chart, there was sick certificate of the
complainant. He proved the sick certificate
of the complainant for 10 days from
3 All. Shubhansh Chand Srivastava Vs. State of U.P.
673
16.10.1998 which was marked as Material
Exh. Ka 20. He also proved fitness
certificate from 23.03.1998 to 24.04.1998
for which sick certificate for 10 days from
23.03.1998 was issued by DMO, Alambagh
,which was marked as Material Exh 21 and
22.

22. P.W.-5 Ramesh Chandra Bhatia,
the then Controller, had deposed on oath
that the complainant, Ram Kumar-IV had
worked under his subordination and his
leave record was being maintained in Loco
shed,, Alambagh. He had further explained
the procedure regarding maintenance of
leave of the concerned employee and the
statement of their absence from the work.
He had proved Ext Ka-37 in his oral
testimony.

23. P.W.-6, Sri Rajiv Srivastava, the
then Senior Divisional Medical Officer,
Loco shed, Alambagh, Lucknow, had
deposed on oath that he was authorized to
issue sick and fitness certificate of the
Railway Employees and had proved Ext.
Ka-16, Ka-20 & Ka-24 of Ram Kumar-IV

24. P.W.-7 Suresh Chand Srivastava,
the then APO (Bills) DRMNR/Lucknow, had
stated in his oral testimony that his job was to
forward the bills after duly checking to the
Accounts Section for further process. He had
identified D-25 as the charge memo (Exh Ka25) which was forwarded to accused Subhash
Chand Srivastava for further process. He also
verified the signatures of accused on the
aforesaid document.

25. P.W.-8 Anup Kumar Srivastava,
the then O.S.-I, Confidential Section,
DRM/NR/Lucknow, had deposed that the
accused was posted in the Establishment
during year 1997 and had also proved
seizure memo Ext. Ka-27, Ka-28 & Ka-29

26. P.W.-9 Ved Prakasn Tripathi, the
then Head Clerk DRM/NR/Lucknow had
stated in his oral testimony that his main
duty was to prepare pay bills of the
employees
of
Loco
shed
Alambagh.
Lucknow. He had further explained the
procedure regarding preparation of pay
bills and the documents to be considered
for the same. He had also attested the
documents of Ext. Ka-25, Ka-25/1, Ka25/2, Ext. Ka-26, ka-26/1, Ka-26/2.

27. PW-10 Jayant Kashmiri, the then
Inspector,
CBI/ACB,
Lucknow,
had
deposed in his oral testimony that on the
basis of the complaint of the complainant
Ram Kumar-IV, the RC was registered
against
the
accused
Subhash
Chand
Srivastava. He made a preliminary inquiry
and finally lead the trap to catch hold of the
accused red handed while demanding and
accepting the bribe money. He had proved
Ext. Ka-5, Ka-6, Ka-17, Ka-28, Ka-30 to
Ka-33, Material Exhibit-3 to 5 & material
exhibit-23

28. PW-11 Sri B.S.Mshra, the
Investigating Officer of the present case,
who was entrusted with the investigation of
this case vide order dated 15.1.1999 had
proved Ext. Ka-27, Ka-29, Ka-34, Ka-35,
Ka-36.

29. The court has to consider that
whether the prosecution has been able to
prove demand and acceptance of the bribe
by
the
accused-appellant
from
the
complainant or not. Demand of bribe from
the complainant had been substantiated by
the testimony of the complainant P.W.-2
himself as well as Satish Srivastava, an
independent
witness
(P.W.-3)
who
accompanied the complainant to the office
of the accused-appellant on 13.01.1999, a
day prior to the trap proceedings. On
674 INDIAN LAW REPORTS ALLAHABAD SERIES
13.01.1999 the complainant and P.W.-3
had gone to the office of the accusedappellant for verification of the allegation
of demand of bribe by the accusedappellant. These two witnesses, i.e. P.W.-2
and P.W.-3 in their testimonies had proved
the demand of Rs.2,000/- by the accused
from the complainant, which was to be paid
in two installments of Rs.1,000/- each.

30. The prosecution case is for
acceptance and recovery of bribe of
Rs.1,000/-. The complainant and P.W.-3
had deposed in the court that bribe amount
was put in the drawer as per the asking of
the accused-appellant himself and same
was recovered from the drawer of the office
table of the accused-applicant in the
presence of T.L.O. (P.W.10) by other
independent witness, Kapil Nath Rastogi
who was, however, not produced by the
C.B.I. during trial. Testimony of P.W.-3
had remained unshaken in respect of asking
the complainant to put Rs.1,000/- in the
drawer of the accused-appellant's office
table, and the complainant put the bribe of
Rs.1,000/- in the drawer of the accusedappellant, which was recovered from the
drawer itself in the presence of the
witnesses.

31. Submission of Sri Anurag Shukla,
learned counsel appearing for the accusedappellant that the accused-appellant had
nothing to do with the alleged leave account
or payment of salary of the complainant and,
therefore, there was no question for any
demand of bribe from the complainant and
the accused-appellant was not in a position to
do any favour to the complainant as his leave
account was nil prior to the incident itself.
This argument is in respect of the motive for
demanding the bribe. Motive would become
irrelevant if the prosecution had been able to
prove demand and acceptance of the bribe
from the complainant. Testimonies of P.W.-
2, P.W.-3 and P.W.-10 would fully prove
demand and acceptance of bribe of Rs.1,000/-
which was recovered from the drawer of
office
table
of
the
accused-appellant.
Submission of Sri Anurag Shukla that
testimony of P.W.-2 was not cogent and
cannot said to be credible inasmuch as at one
point of time, he said that he put the bribe
amount in almirah and later on corrected the
statement that he considered table as almirah
and, therefore, such testimony cannot be said
to be credible and trial court should not have
placed reliance on such testimony. This
minor discrepancy would not destroy the
entire case of the prosecution regarding
demand, acceptance and recovery of bribe.
When the demand and acceptance have been
proved and the amount was recovered from
the drawer of the office table of the accusedappellant, this minor discrepancy would
become irrelevant.

32. Learned counsel appearing for the
accused-appellant
has
submitted
that
statement of P.W.-3 in cross examination that
as he was sitting across the table so he did not
see the drawer in which bribe was kept and,
therefore, said witness could not be treated as
witness of acceptance and recovery of bribe,
is also liable to be rejected.

33. P.W.-3 had supported the
prosecution case from the very beginning
and mere one statement in the cross
examination that he did not exactly view
the drawer would not be enough to say that
the prosecution could not prove the case
regarding acceptance and recovery of bribe
from the drawer of the accused-appellant.

34. It is settled law that it is necessary
to record a conviction under Section 7 and
13 of the PC Act, 1988 proper proof of
demand
and
acceptance
of
illegal
3 All. Shubhansh Chand Srivastava Vs. State of U.P.
675
gratification by the accused public servant
is necessary. It is also settled that mere
possession and recovery of money without
proof of demand by the accused does not
constitute an offence under Section 7 and
13(2)/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)

35. Term "demand" does not find
place under PC Act, 1988 but it has
virtually been inserted in the statute by
interpretative process. Section 20 of the PC
Act,
1988
derives
certain
statutory
presumption of guilt. Section 7 has to be
read in conjunction with Section 20 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 subsection (1) of section 13 it is proved that an
accused person has accepted or obtained or
has agreed to accept or attempted to obtain
for himself, or for any other person, any
gratification
(other
than
legal
remuneration) or any valuable thing from
any person, it shall be presumed, unless the
contrary is proved, that he accepted or
obtained or agreed to accept or attempted to
obtain that gratification or that valuable
thing, as the case may be, as a motive or
reward such as is mentioned in section 7 or,
as the case may be, without consideration
or for a consideration which he knows to be
inadequate.

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

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

36. Plain reading with the words of
Section 20 of the PC Act, 1988 would
mean that if it can be proved that a public
servant has received gratification, Section
20 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.

37. Constitution Bench in 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 PC 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 PC Act, 1988. If
676 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Act.

38. 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, however,
if the presumption is not rebutted, the
offence gets proved as provided under
Section 20 of the PC Act, 1988.

39. In para 4 and 5 of the aforesaid
judgment, ingredients to constitute an
offence under Section 7 and 13(1)(d) of the
PC Act, 1988 have been mentioned and the
paras 4 and 5 of the said judgment are
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
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."

40. In para 74 of the said judgment,
the law for establishing guilt of the
accused/public servant under Section 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
3 All. Shubhansh Chand Srivastava Vs. State of U.P.
677
first
prove
the
demand
of
illegal
gratification and the subsequent acceptance
as a matter of fact. This fact in issue can be
proved either by direct evidence which can
be in the nature of oral evidence or
documentary evidence.

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

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

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

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

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

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

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

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

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

41. 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 Section 7, 13(2)/13(1)(d)
of the Act based on other evidence adduced by
the prosecution.

42. Considering the evidence on the anvil
of the law propounded by the Supreme Court, I
am of the view that the prosecution has been
able to prove the case of demand, acceptance
and recovery of the bribe by the accusedappellant from the complainant. Thus, I find no
merit and substance the present appeal, which is
hereby dismissed. Bail bonds are cancelled and
sureties are dischraged.

43. The accused-appellant is directed to
surrender before the trail court forthwith to
undergo the sentence awarded by the learned
trial court. Let the record of the trail court be
transmitted back to the trial court.

(Application No.127255 of 2021)

1. The application seeks taking additional
evidence under Section 391 Cr.P.C.

2. I find that there is no relation between
the cases registered against the accusedappellant in two different police stations under
different sections. Therefore, application for
taking additional evidence under Section 391
Cr.P.C. is rejected.
----------
(2023) 3 ILRA 678
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 911 of 2013

Shyam Dev & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Dhirendra
Kr.
Srivastava,
Sri
Rama
Shanker, Sri Ray Sahab Yadav, Sri Shashi
Shankar Tripathi, Sri Surendra Singh

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 498A, 304B & 304 (II)-
Murder - Dowry Prohibition Act, 1961 -
Section 3/4 - Evidence Act, 1872 - Section
32 - Appeal against conviction - FIR by
brother of deceased - In wedding,
accused-appellants were given enough
dowry and they demanded extra amount
and motorcycle - When demand was not
fulfilled, the deceased was harassed by
the accused - Informant came to know
that accused persons had poured kerosene
oil on the deceased and tried to set her
ablaze - Trial Court framed charges -
Prosecution has examined 8 witnesses -
Dying Declaration - Death was due to
septicemia after 11 days of incident as per
the testimony of P.W.1 - (Para 3, 4, 5, 8)

Held: While analysing the dying declaration and
the postmortem report, it can't be accepted that
it was an accidental death. It was a homicidal
death and not accidental death. On scrutiny of
the facts and circumstances of the case coupled
with the opinion of the Medical Officer and