Mr K S Singh with Ms Tripti N Jain, Ms. Singh, Ms Ayushi Divyanshi v. STATE

Judgment

1. The present appeal has been preferred against the impugned judgment dated 26.07.2002 vide which the appellant was convicted for the offence punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereafter referred to as „PC Act‟] and vide order on sentence dated 27.07.2002, he was sentenced to undergo rigorous imprisonment for four years with a fine of Rs.500 for each offence, which were directed to run concurrently. It was further directed that in default of payment of fine, the appellant shall further undergo rigorous imprisonment for three months on each count. The present appeal was admitted and the appellant‟s sentence was suspended on 12.08.2002. Signature Not Verified Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:10.12.2025 19:12:56 CRL.A. 614/2002

2. The impugned judgment was rendered in the context of a complaint received at the behest of Wing Commander M. Sharma, who alleged that on

27.07.1994, the appellant, who was working as a Junior Engineer (“JE”) in DDA, at about 10.15 A.M. demanded a sum of Rs.2,000/- as bribe for handing over the possession of a DDA SFS flat no.4300 on ground floor, in category II, Pocket- 5 & 6, Sector - B , Vasant Kunj to the wife of the complainant, who was the allottee of the said flat. As per further case of the prosecution, after carrying out the trap proceeding on the same day at about

4.30 PM, the appellant again demanded a sum of Rs.2,000/- towards bribe and accepted a sum of Rs.1000/- with his right hand and kept the same in the table drawer. The appellant was charged for offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act, to which the appellant pleaded not guilty and prayed for trial. 3. A perusal of record would show that initially during trial, the prosecution did not produce even a single witness and eventually, right to produce evidence by the prosecution was closed on 06.02.1999 and consequently, the appellant was acquitted for want of evidence. The said

order came be challenged before this Court in Criminal Appeal No.418/1999 wherein vide order dated 26.11.2001, the respondent was given another opportunity of three months to produce evidence and the matter was remanded back to the Trial Court. 4. The respondent thereafter produced 7 witnesses in total in support of its case. The complainant was examined as PW-2. Panch witness/Mr Anesh Kumar was examined as PW-5; recovery witness/Anil Kumar was examined as PW-3; Pritam Singh, Assistant Director (later Deputy Director) who produced the documents relevant to the allotment of the subject flat was Signature Not Verified Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:10.12.2025 19:12:56 CRL.A. 614/2002 examined as PW-4. The Trap Laying Officer/S.K. Peshin was examined as PW-6 while Insp. D.M. Sharma was examined as PW-7. The prosecution examined the sanctioning authority as PW-1. 5. While challenging the competency of the sanctioning authority, the appellant examined Mr Ranbir, Deputy Director, DDA as DW-1. 6. In the present appeal, learned counsel for the appellant contended that the complainant was a biased and interested witness whose testimony would require corroboration, which is lacking in the present case inasmuch as the Panch witness Anesh Kumar has neither identified the appellant nor deposed about any demand being made. Further, though the complainant‟s wife (allottee) had statedly accompanied him at the time of trap, she has not been cited as a witness. It is next contended that the testimony of the complainant is also unbelievable as no other witness has stated about antedating of possession slip which was prepared on 27.07.1994 however, was shown as signed on 20.07.1994. The prosecution has failed to establish as to when the allottee of the flat had already received communication dated 20.07.1994 (Ex. PW3/E-9) asking the allottee to visit the office of the DDA on

27.07.1994 for taking possession of the flat, the alleged objective of early possession was met and there was no purpose left for demand of bribe on

27.07.1994. Learned counsel further submitted that though during the trial, a challenge to competency of the sanctioning authority was raised, however, the same is not pressed in the present appeal. 7. The above contentions of the learned counsel for the appellant are refuted by the learned SPP, CBI, who submitted that the complainant has been consistent on the demand of bribe. Though shadow witness has not completely supported the case of the prosecution, however, reading of the Signature Not Verified Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:10.12.2025 19:12:56 CRL.A. 614/2002 testimony shows that on certain occasions, he did mention about the demand raised by one JE. It is submitted that the prosecution has been able to prove the demand being raised as well as the acceptance and recovery of the money. Reliance is placed on the decision in Neeraj Dutta v. State ( Government of NCT of Delhi)1 and Paramjeet Singh v. State of Uttarakhand2 to contend that portions of testimonies of hostile witnesses can still be relied upon when corroborated by other evidence. M. Narsinga Rao v State of A.P. 3, T. Shankar Prasad v. State of A.P. 4 and State of A.P. v. V. Vasudev Rao5 are relied upon to submit that once the accused has accepted or agreed to accept any gratification, the legal presumption under Section 20 (1) of PC Act is attracted and it is not essential for the proof of such acceptance to be direct. 8. Before dealing with the contentions, I would first analyse the evidence that has come on record. Concededly, sanction is not an issue of contest in these proceedings. 9. The complainant, who is the husband of the allottee of the subject flat deposed that his wife was allotted the subject flat sometime in 1994. He produced the letter of allotment (PW2/B), requisition slip (PW2/C) which bore his wife‟s signatures. On 27.07.1994, he approached the DDA office where he met the present appellant who told him that the possession of the flat would be handed over to his wife within a month or so. The complainant requested for earlier possession as his wife was physically challenged. At that stage, the appellant had demanded a bribe of Rs.2,000/-.

88.1 (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 the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act. 88.2 (b) In order to bring home the guilt of the accused, the prosecution has to 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. 88.3 (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. 88.4 (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. 6 B. Jayaraj v. State of Andhra Pradesh reported as (2014) 13 SCC 55 Signature Not Verified Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:10.12.2025 19:12:56 CRL.A. 614/2002 tenders the demand and (ii) On the other hand, if the public servant makes a demand and the the demanded bribe giver accepts 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.”

22. The Court may, when the foundational facts have been proved by relevant oral and documentary evidence, raise a presumption of fact while considering whether demand of illegal gratification has been proved by the prosecution or not. Needless to state that this presumption of fact is subject to rebuttal by the accused. This presumption is different from the one provided for in Section 20 of the Act. While the former presumption is discretionary in nature, the latter is a mandatory presumption. The Constitutional Bench of the Supreme Court in Neeraj Datta (Supra) holds:-

88.5. (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.”

23. In order to attract Section 7 of the PC Act, the production has a bounden duty to prove beyond reasonable doubt that there was a demand for gratification and not a simple demand of money. The presumption under Section 20 is invoked only when the demand and acceptance of bribe is Signature Not Verified Digitally Signed By:NIJAMUDDEEN ANSARI Signing Date:10.12.2025 19:12:56 CRL.A. 614/2002 proved. 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 [Ref. A Subair vs. State of Kerala7]. 24. Further, the word „obtained‟ used in Section 13(1)(d) of the PC Act has been interpreted to secure or gain (something) as the result of request or effort. 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) [now Section 13(1)(d)] of the Act [Ref. C.K. Damodaran Nair vs. Govt. of India8]. 25. The prosecution has claimed that the demand and its acceptance had taken place in presence of complainant, his wife (the allottee) as well as the shadow witness Anesh Kumar. Admittedly, for unbeknownst reasons, the prosecution did not examine the wife of the appellant, who is the allottee of the subject flat and was present at the spot. The shadow witness is also of no help to the prosecution as he did not identify the appellant, and furthermore, had a topsy-turvy deposition. Though he initially stated that the JE had demanded money, however, in cross-examination, he stated that he did not remember if he had heard the JE demand any money. In re-examination, he stated that his second version was correct and reiterated that he did not hear any demand of money made by the JE. Even the recovery witness, PW3, has not been made to identify the appellant in Court, nor any suggestion to this effect has been put by the PP for CBI in his cross examination. Thus, the fact of demand by the appellant only had come in the testimony of the