# BHUPESH DEB GUPTA (DEAD) BY L.RS v. STATE OF TRIPURA

- **Citation:** [1979] 1 S.C.R. 906
- **Court:** Supreme Court of India
- **Decided:** 1978-09-22
- **Bench:** Jaswant Singh, P. s. KAILASAM, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhupesh-deb-gupta-dead-by-l-rs-v-state-of-tripura-7546
- **Pages:** 8

## Headnote

Criminal Procedure Code, 1973 (Act II of 1974), Sections 211, 212, 213,
214 and 215-Charge should not be vague and c•very particular required to be
stated must be furnished so that the accused may not be misled and prciudiced.
Penal Code, 1812-Section 161, ingredients of-Presuniptions under Section
4(1) of the Prevention of Corruption Act-Scope of Section 4(1) of POCA.
Bhupesh Deb Gupta, the original appellant \Vas tried, found guilty of the
charge of receivmg Rs. 75/- from one Nikhil Chakraborty on or about 2-12-1961,
convicted of an offence und!;':r Section 161 I.P .C. and sentenced to suffer rigorous.
imprisonment for two months. The High Court in appeal, while confirming the
conviction under section 161 I.P.C., reduced the sentence to a fine of Rs. 200/·
only, taking into account the age and the long lapse of time between the date of
offence and the date of conviction. During the pendency of the appeal by special
leave the orii;inal appeUant died and therefore, his legal representative was granted leave to continue the appeal under Section 494(2) of the Crl.P.C.
Allowing the appeal the Court,
HELD : ( 1) Before the accused can be held guilty of an offence under
Section 161 of the India'!l Penal Code, the following ingredients will have to be
E
proved:
F
G
B
1. The accused at the time of the offence was a public servant.
2. That he accepted from some person a gratification.
3. That such gratification was not a legal remuneration due to him.
4. That the accused accepted the gratification as a motive or reward for
-0ne of the following purposes :
(a) doing or forbearing to do an official act;
(b) showing or forbearing to show favour or disfavour to someone
in the exercise of his official functions;
(c) rendering or attempting
to render, any service or disservice:
to someone, with the Central or any State
Government
or
Parliament or the Legislature of any State, or with any public
servant.
In the instant case, the fourth ingredient has not been fulfilled due to the
defect in the charge framed as to the motive and also the non-examination of
Nikhil Chakraborty as a witness on the ground "his whereabouts are not
known". [909D-E]
(2) A reading of Section 4(1) of the Prevention of Corruption Act and
Explanation to Section 161 of the Indian Penal Code would show that when it
is proved that the accused has accept..i a gratification it shall be presumod
•
•
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B. D. GUPTA v. TRIPURA (Kailasam, J.)
907
unless the contrary is proved that he accepted it as a rnotive or reward such
A
&s is mentioned in Section 161. Section 161, therefore, provides presumption
in favour of the prosecution. When once it is proved that the accused bad
accepted an illegal gratification it shall be presumed that it is for one of the
purposes in Section 161. The &planation to Section 161 makes it clear that a
person who receives a gratification as a motive for doing what he does not
intend to do, or a~ a reward for doing what has not done conies within the
words, "a motive or reward for doing".
[911D·F]
B
(3) The prosecution would be entitled to rely on the presumption
under
Section 4( 1) of the Prevention of Corruption Act and Explanat:on to Section
161 I.P.C. if the necessary averments were made in the charge and the accused
was given an opportunity to explain the circumstances against him and to meet
che charge which the prosecution was trying to make out against the accused.
[912A-B]
C
In the instant case; it cannot be said that the accused was not prejudiced by
the frame of the charge, because (a) It is admitted that though the accused was
a public servant in exercise of his official position, be could not secure· a job
which he promised. [911H and 912H]
(b) It is not the case of the pra.ecution that the accused received a gratification but he had no intention to do what he promised.
[912A]
D
(c) Nor was it alleged in the charge that the gratification was intended for
being paid to a public servant. The prosecution CMC is that the gratification
was

## Text

A
B
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906
BHUPESH DEB GUPTA (DEAD) BY L.RS.
v.
STATE OF TRIPURA
September 22, 1978
[JASWANT SINGH, P. s. KAILASAM AND A. D. KosHAL, JJ.]
Criminal Procedure Code, 1973 (Act II of 1974), Sections 211, 212, 213,
214 and 215-Charge should not be vague and c•very particular required to be
stated must be furnished so that the accused may not be misled and prciudiced.
Penal Code, 1812-Section 161, ingredients of-Presuniptions under Section
4(1) of the Prevention of Corruption Act-Scope of Section 4(1) of POCA.
Bhupesh Deb Gupta, the original appellant \Vas tried, found guilty of the
charge of receivmg Rs. 75/- from one Nikhil Chakraborty on or about 2-12-1961,
convicted of an offence und!;':r Section 161 I.P .C. and sentenced to suffer rigorous.
imprisonment for two months. The High Court in appeal, while confirming the
conviction under section 161 I.P.C., reduced the sentence to a fine of Rs. 200/·
only, taking into account the age and the long lapse of time between the date of
offence and the date of conviction. During the pendency of the appeal by special
leave the orii;inal appeUant died and therefore, his legal representative was granted leave to continue the appeal under Section 494(2) of the Crl.P.C.
Allowing the appeal the Court,
HELD : ( 1) Before the accused can be held guilty of an offence under
Section 161 of the India'!l Penal Code, the following ingredients will have to be
E
proved:
F
G
B
1. The accused at the time of the offence was a public servant.
2. That he accepted from some person a gratification.
3. That such gratification was not a legal remuneration due to him.
4. That the accused accepted the gratification as a motive or reward for
-0ne of the following purposes :
(a) doing or forbearing to do an official act;
(b) showing or forbearing to show favour or disfavour to someone
in the exercise of his official functions;
(c) rendering or attempting
to render, any service or disservice:
to someone, with the Central or any State
Government
or
Parliament or the Legislature of any State, or with any public
servant.
In the instant case, the fourth ingredient has not been fulfilled due to the
defect in the charge framed as to the motive and also the non-examination of
Nikhil Chakraborty as a witness on the ground "his whereabouts are not
known". [909D-E]
(2) A reading of Section 4(1) of the Prevention of Corruption Act and
Explanation to Section 161 of the Indian Penal Code would show that when it
is proved that the accused has accept..i a gratification it shall be presumod
•
•
'
=-- -
B. D. GUPTA v. TRIPURA (Kailasam, J.)
907
unless the contrary is proved that he accepted it as a rnotive or reward such
A
&s is mentioned in Section 161. Section 161, therefore, provides presumption
in favour of the prosecution. When once it is proved that the accused bad
accepted an illegal gratification it shall be presumed that it is for one of the
purposes in Section 161. The &planation to Section 161 makes it clear that a
person who receives a gratification as a motive for doing what he does not
intend to do, or a~ a reward for doing what has not done conies within the
words, "a motive or reward for doing".
[911D·F]
B
(3) The prosecution would be entitled to rely on the presumption
under
Section 4( 1) of the Prevention of Corruption Act and Explanat:on to Section
161 I.P.C. if the necessary averments were made in the charge and the accused
was given an opportunity to explain the circumstances against him and to meet
che charge which the prosecution was trying to make out against the accused.
[912A-B]
C
In the instant case; it cannot be said that the accused was not prejudiced by
the frame of the charge, because (a) It is admitted that though the accused was
a public servant in exercise of his official position, be could not secure· a job
which he promised. [911H and 912H]
(b) It is not the case of the pra.ecution that the accused received a gratification but he had no intention to do what he promised.
[912A]
D
(c) Nor was it alleged in the charge that the gratification was intended for
being paid to a public servant. The prosecution CMC is that the gratification
was for inducinl a public servant to show favour in this respect. [912A, C]
( d) It is, no doubt, true that tho accused cannot complain of any defect in
the charge if he is not prejudiced. Even in Section 313
(old section 342)
examination of the accused, the purpose for receipt of the gratification was not
E
put to him an<l explanation asked for.
[912A-D]
( e) The High Court understood the charge as meaning that the money was
sent by Nikh·I Chakraborty on behalf of Sachindra Deb. [9121']
and (f) The charge and the judgment of the Courts below indicate that the
Courts proceeded on the basis that the gratification was received by the accused
for showing favour as a 'public servant', while the basis of the charge sought
to be made out in the present appeal is that "the gratification was paid to the
accused for influencing a public servant." [9120]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 74 of
J972.
F
Appeal by Special Leave from the Judgement and Order dated
G
30-7-71 of the Judicial Commissioner Court, Tripur in Crl.A.21167.
M. K. flamamurthi, J. Ramarurthi and Miss R. Vaigai for the
Appellant.
E. C. Agarwala and R. N. Sachthey for the Respondent.
The Judgment 0£ the Court was delivered by
KAILASAM, J.-This appeal is by special leave against the judgment
of the Judicial Commissioner at Agartala convicting the appellant,
H
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908
SUPREME COURT REPORTS
[1979] I s.c.R.
Bhupesh Deb Gupta of an offence. under Section 161 India.n Penal Code
and sentencing him to a fine of Rs. 200/-.
Pending appeal in this Court, the appellant died and his widow
brought on record as the legal representative of Bhupesh Deb Gupta,
as she was adversely affected by the sentence of fine and convictio!l
under Section 161, as it deprived her of receiving the pay and C'ther
allowances which the accused would have been entitled to but for his
c9nviction.
The accused Bhupesh Deb Gupta alias Erick was working as an
Upper Division Clerk in the Tripura Territorial Council in lhe year
1959. While investigating some other offence, P.W. 1 Shri T. Ganguly
who was the Deputy Superintendent of Police in Tripura in 1963 came
across certain postal envelopes in the Office of the Chief Executive
Engineer which disclosed that the accused was receiving bribes.
After
investigation, the accused was charged with various offences.
Jn this
appeal we are only concerned with the charge that the accused received
a sum of Rs. 75/- from Nlkhil Chakraborty as gratification as a motive
or reward for showing favour to him and that on or about 2nd December,
1961 he recevied Rs.751- sent by Money Order by Nikhil Chakraborty
on behalf of one Sachindra Dey as gratification for securing service for
the said Sachindra Dey.
The trail Court found the accused guilty of the charge of receiving
Rs. 75/- from Nikhil Chakraborty on or about 2nd December, 1961 and
convicted him of an offence under Section 161 Indbn Penal Code and
sentenced him to suffer rigorous imprisonment for two months. The
Trial Court framed other charges but found him guilty of
another
charge which need not be referred to as finally he was acquitted by
the High Court of all charges except the one referred to above. The
High Court while confirming the conviction under Section 161 Indian
Penal Code regarding the receipt of Rs. 75/- from Nikhil Chakraborty
reduced the sentence to a fine of Rs. 200/- only, taking into account
the age and the long lapse of time between the date of offence and
the date of conviction.
The charge with which we are concerned as framed by the Sub--
Judge, Agartala reads as follows :
"That you Shri Bhupesh Deb Gupta, alias Erick Deb
Gupta, Assistant, Civil Secretariat, Tripura, while working
as Upper Division Clerk in the Office of the Chief Executive
Officer
0f
the Tripura Territorial Council (now defunct)
accepted on or before 2nd day of Decembec, 1961 a gratification other than legal remuneration of an amount of
'
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,/
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B. D. GUPTA v. TRIPURA (Kailasam, J.)
909
Rs. 75/- through money order from Shri Sachindra Deb,
remitted by Shri Nikhil Chakraborty for showing in exercise
of your official function, favour to the said Sachindra Deb, oo
the plea of securing service for the said Sachindra Deb and
thereby committed an offence punishable under Section 161 of
the Indian Penal Code and within the cognizance of this
Court".
The charge states that accused was a public servant and that he
accepted a gratification other than le_gal remuneration of an amount
of Rs.751- from Nikhil Chakraborty for showing, in exercise of his
official function, favour to Sachindra Deb by securing service for SachinA
B
dra ·Deb. Before the accused can be held guilty of an offence urider
C
Section 161 of the Indian Penal Code, the following ingredients will
have to be proved.
1. The the accused at the time
of the offence was a public
servant.
2. That he accepted from some person a gratification .
3. That such gratification was not a legal remuneration due to
him.
4. That the accused accepted the gratification as a motive o.r
reward for one of the following purposes :
(a) doing or forbearing to do an official act;
(b) showing or forbearing to show fovour or disfavour to
some one in the exercise of his official functions·
(c) rendering or attempting to render, any service or disserD
E
vice to someone, with the Central or any State Government or Parliament or the Legislature of any State, or
F
with any public servant.
It is not in dispute that the first three requirements are satisfied,
namely, that the accused was a public servant, that he accepted a
gratification and that the gratification was not a legal remuneration due
to him.
The contention that was raised by Mr. Ramamurthy, the
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learned counsel appearing for the accused, is that the fourth requirement has not been fulfilled.
He submitted that the prosecution case is
not clear as to whether the gratification was accepted as a motive or
reward for showing a favour in exercise of his official function or
whether the gratification was accepted for payment to another public
servant. In order to appreciate the contentions of the learned counsel it
H
is necessary to state what has been found by the High Court against
the appellant.
•
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c
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E
F
G
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910
SUPREME COURT REPORTS
(1979] 1 S.C.R.
Nikhil Chakraborty was not examined as the summons sent to
him were returned unserved on the ground that his whereabouts are
not known. The only w:tness that was examined was the
person
on whose behalf the money was sent, namely, Sachindra Deb.
Sachindra Deb turned hostile leaving the prosecution with only a
few documents to rely on to prove their case.
The documents relied
on are Exhibits P-5, P-6, P-7 and P-3b. P-6 is tho earliest in point
of time.
It is a Jetter written by the' accused to Nikhil Chakraborty
on 23-11-61.
The letter acknowledges an earlier letter from Nikhil
Chakraborty.
It refers to the matter about the gentleman of Kamalpur presumably Sachindra Deb and states that he was given word
that a job of social worker would be given. It further states that the
recruitment will be done in the last week of December. By that letter the
accused asked Nikhil Chakraborty to remit a sum of Rs. 80/- or Rs.
90/- by T.M.O. which was to be given to the gentleman "who is Office
Head Clerk".
On receipt of this Jetter, a money ord•er
(Exhibit
P-5) for Rs. 75/- was sent by Nikhil Chakraborty on 31-11-1961
at Agartala Post Office.
The accused signed the money order form
and rec~ived the money.
The receipt was received back at Kamalpur post office on 2-12-1961.
After the receipt of
Rs. 75/-
the
accused again wrote on 3-12-1961 (Exhibit P-7) asking for
the
balance of Rs. 15 /- to be remitted. · It is also indicated that in all
a sum of Rs. 150/- will have to be given. The Courts below accepted
the prosecution case that Exhibits P-6, P-7 were
written
by
the
accused, and that the money order receipt (Exh. P-5) was signed
by him.
The trial Judge also compared the signature of the accused
in Exh. P-5 and the writing in P-6 and P-7 with his admitted signatures and found that exhibits P-6 and P-7 and the signature in Exh.
P-5 were of the accused.
The learned counsel for
the appellant
does not question the correctness of these findings.
It is, therefore,
clear that the accused under Exhibit P-6 demanded
a
sum
of
Rs. 90 /- for securing a job for Sachindra Deb and in response to
that letter money order for Rs. 75/- was sent by Nikhil Chakraborty
and received by the accused.
Again under Exhibit P-7 on
3-12-1961 the accused had asked
for the balance of Rs. 15/-.
There can be no doubt that these documents prove that the accused
was a public servant at the relevant time and
received
an
illegal
gratification which was 'not due to him as legal remuneration.
It is
not clear from the correspondence whether the person "Office Head
Clerk" is a public servant.
But the learned counsel appearing for
the State referred us to Exhibit P-3b another letter by the accused
to Nikhil Chakraborty dated 21-2-1962 wherein the accused stated
that the recruitment to the job of the candidate had been postponed
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B. D. GUPTA v. TRIPURA (Kai/asam, J.)
911
due to elections and all appointments were stopped for
the
time
being.
This letter also refers to an order of the Chief
Commissioner.
It is submitted that the internal evidence furnished by the
appellant and a reading of these letters would show that the person
to whom the money was intended was a public servant.
O"n behalf
of the State Govermnent our attention was drawn to the presumption
that is available to the prosecution under Section 4( 1) of the Prevention of Corruption Act which provides that when it is proved in
any trial of an offence punishable under Section 161 of the Indian
Penal Code, that an accused person had accepted for himself or for
any other person, any gratification it shall be presumed unless the
contrary is proved that he accepted that gratification as a motive or
reward such as is mentioned in Section 161 or, as the case may be,
without consideration or for a consideration which he k'.nows to be
inadequate.
The explanation to Section 161 states that a
person
who receives '.l gratification .as a motive for doing what he does not
intend to do, or as a reward for doing what he has not done, comes
within the words "A motive or reward for doihg".
A reading of Section 4 ( 1) of the Prevention of
Corruption
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B
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D
Act and Explanation to Section 161 of the Indian Penal Code would
show that when it is proved that the accused has accepted a gratification it shall be presumed unless the contrary is proved
that he
accepted it as a motive or reward such as is mentio"ned in Section
E
161.
This Section, therefore, provides a presumption in favour of
the prosecution.
When once it is proved that the accused had aco;,pted an illegal gratification, it shall be presumed that it is for one
of the purposes mentioned in Section 161. The Explanation
to
Section 161 makes it clear that a person who receives a gratification
as a motive for doing what he does not intend to do, or as a reward
F
for doing what he has not done comes within the words "A Motive
or reward for doing".
Relying on the two provisions referred to
above, it was submitted by the learned counsel for the
State
that
the prosecution having proved that the accused have received a sum
of Rs. 7 5 /- as a·n illegal gratification, the Court should
presume
the necessary motive or reward as is mentioned
in
Section 161.
G
While there can be no doubt that the submission of the
learned
counsel for the State is sound, we find that there is one obstacle in
the way of the prosecution succeeding on the facts of this case.
The charg~ states that the amount of Rs. 75/- was remitted for
showing favour in exercise of his official function.
It is admitted
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that though the accused was a public servant, in exercise
of
his
official position he could not secure a job which he promised.
It
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912
SUPREME COUllT REPORTS
[1979] 1 s.c.R.
is not the case of the pmsecution that he received a gratification but
he had no intention to do what he promised.
Equally, it is
not
alleged in the charge that the gratification was intended for being
paid to a public servant.
The prosecutio'n would be entitled to rely
on the presumption under Section 4 (1) of the Prevention of Corruption Act and Explanation to Section 161, IPC if the necessary averments were made in the charge and the accused was given an opportunity to expiain the circumstances appearing against him.
While
the charge mentions the gratification being paid for showing ·favour
in exercise of his official function, the prosecution case is that the
gratification was for inducing a public servant to show
favour in
this respect.
It is, no doubt, true that the accused cannot complain
of a·ny defect in the charge, if he is not prejudiced.
The accused
when questioned under Scctio'n 342 of the Criminal Procedure Code,
the purpose of recdpt of the gratification was not put to him and
explanation asked for.
The second question which relates to
the
charge is in the following terms :
"What have you got to say regarding the char190 brought
by the complainant's party that on 2'nd December,
1961
A.D. or any time near about that, you received a gratification other than legal remuneration
of
an
amount
of
Rs. 75/ by post through Shci Nikhil Chakraborty,
from
one Shri Sachin Deb, giving him assurance of securing a
service for him.
The accused answered that it was false."
It was not suggested that the mo'ney was intended to be paid to
another public servant or that b.~ retained the money without intending to do what he promised.
F
The wording of the charge framed by the Special Judge is that
the money was remitted by Nikhil Chakraborty for
showing,
in
exercise of official function, a favour to the said Sachindra Del:Y •Jn
the plea of securing service for the said Sachindra Deb.
The High
Court u'nderutood the charge as meaning that
the
money
was
sent by Nikhil Chakraborty on behalf of Sachindra Deb as a gratitiG
cation for securing service for the said Sachindra Deb.
It appears
from the charge and from the judgment of the courts be:ow that the
courts proo~eded on the basis that the gratification was
received
by the accused for showing favour as a public servant.
As the basis
of the charge is entirely different from what is sought to be made
out now i.e. the gratification was paid to the accused for influe'ncing
H
a public servant, it cannot be said that the accused was not prejudiced
by the frame of the charge. It would
have been
open to
the
prosecution to rely on the presumption if the charge was
properly
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B. D. GUPTA v. TRIPURA (Kailasam, J.)
913
framed and the accused was given an opportunity to meet the charge
which the prosecution was trying to make ont agalnst the accused.
On a carefnl scrutiny of the facts of the case, we are unable
to
reject the contentions of the lea!'n"..d counsel for the accused that he
was prejudiced by the defect in the charge and that he had
no
opportunity to meet the case that is put forward against him.
In tb~ result, we accept the contentio'n of the learned counsel
for the appellant and allow the appeal and set aside the conviction
and sentence imposed on him.
S.R.
Appeal allowed.
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