TaxTMI 
TaxTMI 
2023 (3) TMI 1630
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 15,000/- for the offence punishable under sub-section (2) of Section 13 of the PC Act. For the offence punishable under Section 7, she was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/-. Sentences in default of payment of fine were also imposed. The conviction of the appellant has been upheld by the High Court by the impugned judgment. 2. The complainant - Mr. Ravijit Singh died before the trial commenced. In fact, PW-7, the Investigation Officer, deposed that the complainant was murdered. In his complaint, the complainant stated that he was doing business of sale and purchase of cars in a shop situated at Vikas Puri, New Delhi. His case is that there was no electricity meter installed in his shop and therefore, on 6th May 1996 he applied for an electricity meter. In the complaint filed by him on 17th April 2000, in the form of his statement recorded by the Anti- Corruption Bureau, he stated that pursuant to the application dated 6th May 1996, a meter was installed in his shop and after a few months, he found that the meter was removed. As the shopkeepers in the area had got the electricity meters installed through the appellant, he me....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t permissible to draw inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution." 5. The above-mentioned question was referred for decision to a Constitution Bench, which disposed of the reference by the judgment dated 15th December 2022 [2022 SCC Online SC 1724]. Broadly, the Constitution Bench held that in absence of the complaint's testimony in a prosecution for offences punishable under Sections 7 and 13(2) of the PC Act, the prosecution can rely upon even circumstantial evidence to prove the demand of gratification. In paragraph 74 of the said decision, the Constitution Bench has summarized its conclusions. RIVAL SUBMISSIONS 6. Shri S. Nagamuthu, the learned senior counsel appearing for the appellant submitted that this is a case where there is no evidence of demand of illegal gratification by the appellant. The learned senior counsel submitted that proof of demand of gratification by a public servant is a sine qua non for the offences punishable under Sections 7 and 13(1)(d) of the PC Act. He submitted that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... pecuniary gratifications or to gratifications estimable in money. (c) "Legal remuneration"- The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section." 9. Section 13(1)(d), as existed at the relevant time, reads thus: "13.Criminal misconduct by a public servant .- (1) A public servant is said to commit the offence of criminal misconduct,- (a) .................... (b) .................... (c) ..................... ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent. 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 in turn 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 fou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj (Supra) and P. Satyanarayana Murthy (Supra). There is another decision of a three Judges' bench in the case of N. Vijayakumar v. State of Tamil Nadu [2021 (3) SCC 687], which follows the view taken in the cases of B. Jayaraj (Supra) and P. Satyanarayana Murthy (Supra). In paragraph 9 of the decision in the case of B. Jayaraj (Supra), this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9, this Court held thus: "9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance....
X X X X Extracts X X X X
X X X X Extracts X X X X
....irly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court." (emphasis added) Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt. 13. Section 7, as existed prior to 26th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case, specifically refers to "any gratification". The substituted Section 7 does not use the word "gratification", but it uses a wider term "undue advantage". When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of sub-section (1) of Section 13, which ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not be examined. The raiding party consisted of PW-5, Mr. S.K. Awasthi, an Officer in Irrigation Department; PW-6, Mr. O.D. Yadav, Traffic Inspector and PW-7, Mr. Niranjan Singh, ACP. Going by the complaint which could not be proved through the complainant, it is the case of the prosecution that the first demand was made by the appellant to the complainant in the morning of 17th April 2000 when he met her at her residence. There was no charge framed on the basis of this demand. According to the prosecution's case, the second demand was made during the trap. There is absolutely no evidence about the first demand made in the house of the appellant as no one except the complainant was present there. According to the prosecution's case, PW-5 was the witness to the second demand made by the appellant on 17th April 2000 at around 5:20 p.m. PW-5 stated in his evidence that though the complainant had informed the trap party that the appellant will be visiting his shop at about 3:50 p.m., the appellant did not turn up. Subsequently, a telephone call was received by the complainant informing that she would come by 5:30/6:00 p.m. Ultimately, according to the case of PW-5, at about 5:2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce to deposit electricity charges. She stated that earlier, she had a transaction of sale and purchase of a car through the complainant. She has also stated that the complainant was a history-sheeter and there were three First Information Reports (FIRs) registered against him. In this context, PW-5 was questioned in the cross-examination. The relevant answer given by PW-5 reads thus: "I cannot confirm or deny that accused Neeraj Dutta along with her cashier and other staff consisting of four five member had collected Rs.71,000/- in the single delivery point camp held at Jai Vihar and she along with her staff members were coming in her car and on the way she stopped at the shop of the complainant who was her neighbour to collect the balance sale proceeds of Rs.1 lac of her previous car from the complainant as she had sold the said car through the complainant to M/s. Sagar Motors and this payment was to be received by her through complainant from M/s. Sagar Motors." It is pertinent to note here that PW-5 did not confirm the correctness of the suggestion but stated that he was not in a position to deny the same. In fact, PW-7, the investigation officer, deposed that cash ....