TaxTMI 
TaxTMI 
2019 (5) TMI 2054
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....I/ S.P.E, District Lucknow. Since, all the above three criminal appeals have arisen from the same case crime, therefore, they have been heard together and are being disposed of by this common judgment. These appeals assail the correctness of the judgment and order dated 26.07.2014 passed by learned Special Judge, P.C.Act, C.B.I., (West), Lucknow in Criminal Case No. 05 of 1997, arising out of Case Crime No. RC 1(A)/1995 (State Versus R.K. Srivastava and others), under sections 120-B of I.P.C. read with Section 7 and 13 (1)(d) and Section 13 (2) of the P.C, Act, 1988, Police Station C.B.I/ S.P.E, District Lucknow, whereby the accused appellants have been convicted and sentenced the accused-appellants namely, A.K. Gaba, Dushyant Kumar and Alok Gupta, convicted as under: (a) Accused-appellant, namely Shri R. K. Srivastava has beenconvicted and sentenced Under Section 7 of Prevention of Corruption Act. - Four years' rigorous imprisonment with fine of Rs.40,000/- with default stipulation of one year's additional rigorous imprisonment. (b) Accused-appellant, namely Shri R. K. Srivastava has beenconvicted and sentenced Under Section 13(1)D read with Section 13....
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....here the accused himself P.K. Srivastava were allegedly also found sitting there. The team of the C.B.I. raided the house of accused-appellant, namely, R.K. Srivastava and Rs.60,000/- were recovered from bedroom and Rs.20,000/- were also recovered from the pocket of jacket of P. K. Srivastava, brother of R.K. Srivastava. Both hands of R.K. Srivastava, P.K. Srivastava and Dushyant Kumar were dipped in the solution on this, solution was turned pink. As such, R.K. Srivastava and other accused persons were allegedly caught red-handed. Thereafter, the investigation was conducted and the charge sheet was submitted against about six persons. To bring home the guilt of the appellants, the prosecution has examined as many as seventeen witnesses, namely PW-1 Shri Atul Kumar Srivastava, Retired I.A.S., PW-2 Shri J. Mohan Das Bhat, Retired from Canara Bank, PW-3 Shri Subhash Chandra, Retired, Secretary, D.G.C.E.I, PW-4, Shri Kuldeep Tiwari, Industrial Advisor, PW-5 Shri R.K. Sharma, in Service, Syndicate Bank, PW-6 Shri Captain Ranveer, Retired Chief Manager, Syndicate Bank, PW-7, Shri N.P. Tiwari, Retired, Additional S.P./ C.B.I., PW-8 Shri Rajesh Rastogi, Marketing Manager, Mahakale....
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....dence to prove the payment of bribe or to show that the accused voluntarily accepted the money knowing it to be a bribe. In support of the aforesaid contention placed reliance in the case of State of Kerala Versus C.P. Rao (2011) 6 SCC 450 wherein Hon'ble Apex Court has again held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corroboration of the testimony of the complainant regarding the demand of bribe. Learned counsel for the appellants has further submitted that the entire judgment of the trial court is based on surmises, conjectures and hypothesis. The learned lower court unnecessarily given undue weightage on the cases based on circumstantial evidence and unnecessarily elaborated the concept of motive and intention so as to giving the shape of conviction to the facts and circumstances available on record. It is next submitted by learned counsel for the appellants that the accused appellants were found only of counting of money because no part of the alleged bribe was recovered from the possession of the accused-appellants. In support of this, reliance has been placed in the case of Sri R.P.S. Yadav vs. Central Bu....
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....well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. It is also argued by the counsel for the appellants that while all the three Inspectors, including both the appellants, were charged under Section 120 B (Criminal Conspiracy) of the IPC but main accused and alleged chief conspirator R.K. Srivastava was not charged under Section 120-B of IPC. Thus, the appellants were subjected to trial without linkage with prime accused who alone is allegedly involved in demand, acceptance and recovery of bribe amount in whole case. Both the appellants, namely, A.K. Gaba and Alok Gupta were not present in the official chamber of R.K. Srivastava on 10.01.1995 which is evident from the statements/ cross examinations of many prosecution witnesses. It is also argued that there is no evidence on record that the accused- appellants, charged for criminal conspiracy, ever met to hatch conspiracy of....
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.... spirit of law as no person can be inculpated and exculpated at the same stake. The very uses of these words shake the confidence in the justice system and unless and until the guilt of the accused is proved up to hilt by cogent & corroborative evidence, every accused is liable to be discharged. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by the Apex Court in the case of B. Jayaraj, P. Satyanarayana Murthy, Kishan Chander and Rakesh Kapoor upon which reliance is rightly placed by the learned counsel on behalf of the appellants. The relevant paragraphs from the cases read as under: (i) B. Jayaraj v. State of A.P.; (2014) 13 SCC 55 "It is a settled position in law that demand of illegal gratification is a sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. Mere possession ....