CRL.A./248/2005 of SANJIV SHARMA Vs C.B.I.

Signature Not Verified

$~51 & 52

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Pronounced on: 19.09.2024

+CRL.A. 246/2005

RK GUPTA

..... Appellant

Through:Mr. Sanjay Jain, Mr. RameshGupta, Sr. Advs. with Mr. YuvrajSharma, Advocate.Gupta, Sr. Advs. with Mr. YuvrajSharma, Advocate.

versus

STATE(THR.CBI)

..... Respondents

Through:

Mr. Anurag Ahluwalia, CGSC.

+CRL.A. 248/2005SANJIV SHARMASANJIV SHARMA

..... Appellant

Through:Mr. Pardeep Gupta, Mr. ParinavGupta and Ms. Mansi Gupta,Advs.Gupta and Ms. Mansi Gupta,Advs.

versus

C.B.I...... Respondent

Through:

Mr. Anurag Ahluwalia, CGSC.

CORAM:

HON'BLE MR. JUSTICE VIKAS MAHAJAN

JUDGMENT

VIKAS MAHAJAN, J.

1.The present appeals have been filed by the appellants seeking toset aside the impugned judgment dated 11.03.2005 passed by thelearned Special Judge in CC No. 24/1996, whereby both the appellantswere held guilty of the charge under Section 120 IPC. The

CRL.A.246/2005 & CRL.A. 248/2005

Page 1 of 36

Signature Not Verified

appellant/accused R.K. Gupta was further held guilty of the chargeunder Section 120B IPC read with Section 7 of the Prevention ofCorruption Act, 1988 (hereinafter referred to as ‘the Act’) and Section13(1)(d) punishable under Section 13(2) of the Act, whereas, theappellant/accused Sanjiv Sharma was held guilty of the charge underSection 7 and Section 13(1)(d) punishable under Section 13(2) of theAct. As the facts and issues in both the appeals are identical, therefore,the same are decided by this common judgment.

2.The challenge is also to an order on sentence dated 14.03.2005wherebytheappellant/R.K.Guptawassentencedtorigorousimprisonment (‘RI’) for one year u/s 120B IPC and to pay fine of Rs.15,000/- and in default of payment of fine, to undergo RI for 3 months.He was further sentenced u/s 13(2) of the Act to undergo RI for aperiod of 2 years and to pay fine of Rs. 25,000/- and in default ofpaymentoffine,toundergoRIfor6months.Likewise,appellant/Sanjiv Sharma was sentenced to undergo RI for 2 years u/s 7of the Act and to pay fine of Rs. 15,000/- and in default thereof, toundergo RI for 3 months. He was further sentenced u/s 13(2) of the Actto undergo RI for 1 year and to pay fine of Rs. 10,000/- and in defaultthereof, to undergo RI for 2 months.

3.The facts of the case in brief as can be noted from the record arethat during March 1995, the appellant/R.K. Gupta was working asAssistant Engineer (‘AE’ for short) and the other appellant/SanjivSharma was working as Inspector in the Office of DESU, Zoneno.2102, Gandhi Nagar, Geeta Colony, Delhi. It is alleged that theappellants R.K. Gupta and Sanjiv Sharma during the period of March-

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

April, 1995 entered into criminal conspiracy with each other with theobject of obtaining bribe of Rs.25,000/- from the complainant/SubhashChand in consideration of issuance of power connection at his businesspremises viz. ‘M/s. Jeet Auto Industries’, X-888 Chand Mohalla,Gandhi Nagar, Delhi (hereinafter referred to as ‘premises’). Inpursuanceofthesaidcriminalconspiracy,on05.04.1995theappellant/R.K. Gupta demanded bribe from the complainant anddirected him to contact appellant/Sanjiv Sharma for settling the amountof bribe. Accordingly, the complainant met the appellant/Sanjiv Sharmaon the same day, who demanded Rs. 25,000/- from the complainant butagreed to accept Rs. 3000/- as first installment.

4.As per the case of prosecution, the complainant had applied forsanction of 10 HP Connection at his premises. He had completed all theformalities as required by DESU and had deposited all the charges. Therelated file was sent by the Commercial Branch to the appellant/R.K.Gupta, AE working in Zone no. 2102, on 21.3.1995 for installation ofload as per letter no.236999 dated 20.3.1995.The said appellant hadmarked the same to the appellant/Sanjiv Sharma, Inspector of the areaconcerned,forfurtheraction.Thereafter,on05.04.1995thecomplainant met the appellant/R.K.Gupta inquiring about the progressin his work, but the appellant first directed him to meet appellant/SanjivSharma to settle the amount of bribe for getting the work done.

5.The complainant was not willing to pay bribe, therefore, on07.04.1995 he went straight to CBI office and made complaintEx.PW2/C. The said complaint was accordingly marked by SP, CBI toSh. SK Peshin, DSP (PW-7), who joined Ram Gopal (PW-5) and H.S.

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

Saroha (PW-4) (both officials of NBCC) as independent witnesses forlaying the trap. Thus, 100 GC Notes amounting to Rs. 3,000/- wereprovided by the complainant. Usual preparations for the trap were madeby recording the numbers of the GC notes, treating the GC notes withPhenolphthalein Powder, giving demonstration before the witnessesabout the effect of Phenolphthalein in the solution of Sodium Carbonateand giving necessary instructions to the complainant and witnesses.

6.The trap team accordingly reached the DESU Office. Thecomplainant and shadow witness Ram Gopal (PW-5) were directed togo inside the office, while other members took suitable positions. Afterfew minutes, the complainant and shadow witness came out of theDESU Office building and informed Sh. SK Peshin/PW-7 that theappellant/R.K. Gupta who was present inside the building had askedabout the money and told them to wait for appellant/Sanjiv Sharma,who was to return within 15 minutes

7.Thereafter, the complainant met appellant/Sanjiv Sharma alongwith shadow witness/Ram Gopal (PW-5) after crossing the road outsidetheDESUofficeandhadaconversationduringwhichtheappellant/SanjivSharmaextendedhisrighthandtowardsthecomplainant and after accepting the GC notes kept the same in the outerright-side pocket of the jeans worn by him, whereupon PW-5 gave asignalto the trap team and theappellant/Sanjiv Sharmawasapprehended.Theshadowwitnessconfirmedthedemandandacceptance by appellant/Sanjiv Sharma. The appellant/Sanjiv Sharmavoluntarily admitted having accepted the bribe amount on the directions

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

of the appellant/R.K. Gupta. He also identified appellant/R.K. Gupta inthe office, who was then apprehended by the trap team.

8.On the directions of Sh. SK Peshin/PW-7, the independentwitnesses recovered 30 GC notes, each note of Rs.100/- denomination,from the pocket of the jeans of appellant/Sanjiv Sharma. The numberson the GC notes were also tallied and matched with the handing overmemo where the numbers of GC notes were recorded. The right hand ofthe appellant/Sanjiv Sharma was also dipped in the colourless solutionof Sodium Carbonate, which turned pink. The right front pocket of thejeans worn by the accused Sanjiv Sharma was also washed in anotherfreshly prepared solution of Sodium Carbonate, the same also turnedpink. Thereafter, search of the table of the appellant R.K. Gupta, wasalso conducted and papers relating to M/s Jeet Auto Industries wereseized vide another memo. The expert opinion from CFSL regardingpresence of Phenolphthalein and Sodium Carbonate in the hand washand pocket wash of the jeans was also obtained.

9.Consequently, chargesheet was filed after obtaining sanctionfrom the General Manager/PW-1. Charges as mentioned in paragraph 1above were framed against both the appellants.

10.To prove its case, the prosecution examined 8 witnesses and theappellants examined 9 defence witnesses. After considering theevidence of the witnesses, the learned Special Judge convicted andsentenced the appellants.

11.Feeling aggrieved by the impugned judgment of conviction andorder on sentence, the present appeals have been preferred by theappellants.

CRL.A.246/2005 & CRL.A. 248/2005

Page 5 of 36

Signature Not Verified

CRL.A. 246/2005 (by the appellant/R.K. Gupta)

12.It is the case of the appellant/R.K. Gupta and so contended by thelearned senior counsel appearing on behalf of the appellant that theappellant has been convicted of three charges solely on the basis ofcircumstantial evidence. He submits that the charges framed against theappellant are not specific as the attributions of the charges pertain onlyto the alleged incident of 05.04.1995 and there is no attribution of anyspecific role assigned to the appellant as regards the date of incident i.e.07.04.1995 on which the trap was laid and the alleged bribe was statedto be handed over to the appellant / Sanjiv Sharma. He adds that in theabsence of any charges framed against the appellant, implicating him inthe incident of 07.04.1995, particularly with regard to the followingconversationallegedtohavebeentakenplacebetweenthecomplainant/SubhashChandandtheappellant/R.K.Guptaon07.04.1995, neither the charges could have been pressed against the

appellant nor the same could have been proved:

R K Gupta- Rupee ka intzaam huya

Subhash Chand- Pure pachees hazar (Rs. 25,000), ka intzaam

hua hai. Inspector sahaab kahan hai?

R K Gupta- Inspector sahab kahi bahar gaye hai 10-15 minutemein aa jayengae.mein aa jayengae.

Subash Chand- Intzaar karta hoon

13.He submits that the aforesaid alleged conversation between thecomplainant and the appellant cannot be construed as an offence undersection 7 of the Act read with section 120 IPC as the prosecutionevidence does not establish any criminal conspiracy between theappellant and co-accused Sanjiv Sharma against the complainant.

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

14.He submits that the complainant is an interested witness becausethe appellants were part of the enforcement team, which had raided hisfactory on the allegation of electricity theft and that the complainantwas harbouring animosity against the appellants for the said reason. Hesubmits that this fact is further fortified by the timing of the FIR lodgedon 07.04.1995, which is less than four weeks from the date of the raid10.03.1995 in which the appellants had participated. Therefore, thetestimony of complainant lacks credibility and does not inspireconfidence nor it is corroborated by any independent witness. He reliesupon the decisions in Mukut Bihari vs. State of Rajasthan, (2012) 11

SCC 642 and Jaswant Singh vs. State of Punjab, (1973) 3 SCC 657.

15.He submits there is also contradiction in the statement of thecomplainant (PW-2) as regards his visit to the office of CBI. The caseof the prosecution is that the complainant went to the office of CBI on07.04.1995, however, in his cross-examination he (PW-2) has statedthat he met SP, CBI on 05.04.1995.

16.He further submits that PW-5, one of the two panch witnesses,who is said to have accompanied the complainant during the raid hasdeposed that he was walking along with the complainant and that noconversation as reproduced in para 12 above took place between thecomplainant and appellant / R.K. Gupta. In fact, he did not even namethe appellant. Thus, the only interaction between the appellant/R.K.Gupta and the complainant on 07.04.1995, which has been made basisfor implicating the appellant, was denied by PW-5.

17.He submits that the prosecution in the present case has attemptedto charge the appellant in case of obtainment under Section 13(1)(d)

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

of the Act, without proving by way of any direct or circumstantialevidence that demand and acceptance were made by the appellant/R.K.Gupta.

18.Insofar as presumption drawn by the learned Special Judge undersection 20 of the Act is concerned, he submits that the said presumptionwas drawn against appellant/Sanjiv Sharma on the basis of hiscontention that the currency notes were shoved into his pocket by thecomplainant and that he had neither demanded nor accepted the same.Thus, the presumption would not apply on the appellant/R.K. Gupta. Hesubmits that anyhow, as per the ratio laid down by the Hon’bleSupreme Court in Neeraj Dutta vs. State (NCT of Delhi), (2023) 4SCC 731, it is clear that section 20 of the Act does not apply to Section13(1)(d)(i) and (ii) of the Act.

19.He submits that the prosecution is duty bound to prove thefoundational facts beyond reasonable doubt, however, in the presentcase the foundational facts of demand, acceptance and recovery havenot been proved as far as the case of the appellant/R.K. Gupta isconcerned. He further submits that demand of illegal gratification issine qua non to constitute the offence under Section 7 and 13(1)(d)(i) &(ii) of the Act and mere recovery of currency notes cannot constitute thesaid offence. He places reliance on the decisions in – (i) B. Jayraj vs.State of Andhra Pradesh: (2014) 13 SCC 55; (ii) P. SatyanarayanaMurthy vs. District Inspector of Police, State of Andhra Pradesh &Anr.: (2015) 10 SCC 152.

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

20.In the backdrop of his above submissions, the learned SeniorCounselurgesthecourttosetasidethe convictionquatheappellant/R.K. Gupta.

CRL.A. 248/2005 (by appellant/Sanjiv Sharma)

21.The learned counsel appearing on behalf of the appellant/SanjivSharma submits that CBI raid was conducted with mala fide intention inconnivance with the complainant to prevent the appellants fromperforming their statutory duty as officers of the DESU.

22.He substantiates his submission by contending that connivance ofCBI officials with the complainant can be gathered from the followingfacts:

a)DW-6 i.e., the joint director of CBI, has deposed before thetrial court that on 06.01.1995, he had made complaint againstM/s Jeet Auto Industries (factory of the complainant) regardingstealing of power directly from the pole. The said complaint wasreferred to A.E. (Enforcement) by DESU Vigilance departmentand accordingly, the raid was conducted by team comprising ofappellants, on the premises of the complainant on 10.03.1995.Accordingly, joint inspection report was prepared with thesignatures of the appellants and the premises of the complainantwas kept under surveillance;

b)The integrity of PW-7 / DSP, CBI, who conducted the raidon the complaint of the complainant has been proved to be undercloud by DW-8 / correspondent of Rashtriya Sahara Newspaper,who has deposed as to the news items reported in the saidon the complaint of the complainant has been proved to be undercloud by DW-8 / correspondent of Rashtriya Sahara Newspaper,who has deposed as to the news items reported in the said

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

newspaperagainstPW-7,asEx.DW-8/A,Ex.DW-8/BandEx.DW-8/C are his reports;

c)The appellants could not have made any demand of bribeeitheron05.04.1995or07.04.1995,astheclearanceforinstallationofpowerconnectionatthepremisesofthecomplainant was given by the DESU, Enforcement Departmentonly on 18.04.1995. Thus, the role of the appellants could haveonly come into picture after clearance being given by theEnforcement Department, as before that, the premises of thecomplainant was put under surveillance. Prior thereto, there wasno occasion for the appellants to demand any bribe. Hence, it wasthe mala fide intention of the complainant to make false complaintas his premises was put under surveillance by the appellants.

23.He further submits that the present case is the case of no evidencefor the following reasons:

a.The demand by the appellant has not been proved by theprosecution as none of the prosecution witnesses have deposedabout the foundational fact that bribe was ever demanded by theappellant on 07.04.1995;

b.PW-4 was declared hostile and did not support the case ofthe prosecution;the prosecution;

c.Thecomplainantdidnotmakeanycomplainton05.04.1995, when it has been alleged that the demand for the bribewas first made by the appellant / R.K. Gupta but the complaint wasmade only in the morning of 07.04.1995;

Signature Not Verified

d.PW-5, the shadow witness has deposed that he was not in aposition to hear the conversation between the complainant and theappellant on 07.04.1995;

e.DW-3, who was present at the place of incident on07.04.1995, has proved the defence of the appellant / SanjivSharma that the person who was accompanying appellant / SanjivSharma was offering the said appellant to take money for giving itto appellant / R.K. Gupta but when appellant / Sanjiv Sharmarefused, he drew bundle of currency notes from his pocket andthrust it into the front pocket of jeans of appellant / Sanjiv Sharma.

f.It is the case of the complainant that the appellant hadaccepted bribe in his right hand, however, as per complainant’sown statement under Section 161 CrPC, he has stated that as perPW-5, the appellant had accepted bribe in his left hand;

24.Accordingly, it was urged that the appellant / Sanjiv Kumar isentitled to be acquitted.

BRIEF SUBMISSIONS ON BEHLAF OF THE RESPONDENT /CBI

25.Percontra,learnedSPPforCBImakesthefollowingsubmissions:

a.The testimony of PW-5 and PW-7 is sufficient tocorroborate the testimony of complainant with respect to theallegation that the appellant had accepted the bribe money fromthe complainant;

b.The testimony of PW-5 can be relied upon despite beingdeclared as hostile witness as it is settled law that testimony of adeclared as hostile witness as it is settled law that testimony of

Signature Not Verified

hostile witness can be relied upon to the extent it supports theprosecution’s version;

c.The learned special judge has rightly drawn presumptionagainst the appellants under Section 20 of the Act as the onlycondition for drawing legal presumption under Section 20 is thatduring trail it should be proved that the accused has accepted oragreed to accept any illegal gratification. Such presumption can beraised even without direct evidence;

d.The contention raised by the appellant with respect tosanction to prosecute the appellants being granted illegally isdevoid of any merits as the appellant / R.K. Gupta was serving asan AE and thus, the General Manager, DESU was the rightauthority, competent to accord the sanction; and

e.As charges have been proved against the appellants beyondreasonable doubt, the present appeals are liable to be dismissed;and

26.He places reliance on the decisions in (i) M. Narasinga Rao vs.State of Andhra Pradesh, (2001) 1 SCC 691,(ii) T. Shankar Prasad vs.State of Andhra Pradesh, (2004) 3 SCC 753, (iii) Koli LakhmanbhaiChanabhai vs. State of Gujarat, (1999) 8 SCC 624, (iv) Attar Singhvs. State of Maharashtra, (2013) 11 SCC 719; and (v) Devraj vs. Stateof Chhattisgarh, (2016) 13 SCC 366.

FINDINGS

27.I have heard the learned counsel for the appellants as well aslearned SPP for the respondent/CBI and have perused the evidence andother material on record.

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

28.The appellants have been held guilty of the charge under Section7 and Section 13(1)(d) punishable under Section 13(2) of the Act,besides the charge under Section 120B IPC.

29.To be noted at the outset that proof of demand and acceptance ofillegal gratification by the public servant as fact in issue is sine quanon in order to make out an offence under Section 7 and Section13(1)(d) of the Act. In other words, to establish guilt of an accusedpublic servant, mere acceptance or receipt of an illegal gratificationwithout anything more would not make it an offence under Section 7 orSection 13(1)(d) of the Act. Reference in this regard may be had to thedecision of the Hon’ble Supreme Court in Neeraj Dutta (supra), therelevant part of which reads as under:

88. Whatemergesfromtheaforesaiddiscussionissummarised as under:

88.1. (a) Proof of demand and acceptance of illegal

gratification by public servant as fact in issue bythe prosecution is sine qua non in order to establishthe guilt of the accused public servant under Sections7 and 13(1)(d)(i) and (ii) of the Act.

88.2. (b) In order to bring home the guilt of theaccused, the prosecution has to first prove thedemand of illegal gratification and the subsequentacceptance as matter of fact. This fact in issue canbe proved either by direct evidence which can be inthe nature of oral evidence or documentary evidence.88.3. (c) Further, the fact in issue, namely, the proof ofdemand and acceptance of illegal gratification canalso be proved by circumstantial evidence in theabsence of direct oral and documentary evidence.88.4. (d) In order to prove the fact in issue, namely, thedemand and acceptance of illegal gratification by the

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

public servant, the following aspects have to be bornein mind:

(i) if there is an offer to pay by the bribe-

giver without there being any demand from thepublic servant and the latter simply accepts theoffer and receives the illegal gratification, it isa case of acceptance as per Section 7 of the Act. Insuch case, there need not be prior demand bythe public servant.public servant and the latter simply accepts theoffer and receives the illegal gratification, it isa case of acceptance as per Section 7 of the Act. Insuch case, there need not be prior demand bythe public servant.

(ii) On the other hand, if the public servant makes ademand and the bribe-giver accepts the demandand tenders the demanded gratification which inturn is received by the public servant, it is case ofobtainment. In the case of obtainment, the priordemand for illegal gratification emanates from thepublic servant. This is an offence under Sections13(1)(d)(i) and (ii) of the Act.demand and the bribe-giver accepts the demandand tenders the demanded gratification which inturn is received by the public servant, it is case ofobtainment. In the case of obtainment, the priordemand for illegal gratification emanates from thepublic servant. This is an offence under Sections13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer bythe bribe-giver and the demand by the publicservant respectively have to be proved by theprosecution as fact in issue. In other words, mereacceptance or receipt of an illegal gratificationwithout anything more would not make it anoffence under Section 7 or Sections 13(1)(d)(i) and(ii), respectively of the Act. Therefore, under Section7 of the Act, in order to bring home the offence, theremust be an offer which emanates from the bribe-giver which is accepted by the public servant whichwould make it an offence. Similarly, prior demandby the public servant when accepted by the bribe-giver and in turn there is payment made which isreceived by the public servant, would be an offenceof obtainment under Sections 13(1)(d)(i) and (ii) ofthe Act.

88.5. (e) The presumption of fact with regard to thedemand and acceptance or obtainment of an illegalgratification may be made by court of law by way of

Signature Not Verified

an inference only when the foundational facts havebeen proved by relevantoral and documentaryevidence and not in the absence thereof. On the basisof the material on record, the court has the discretionto raise presumption of fact while consideringwhether the fact of demand has been proved by theprosecution or not. Of course, presumption of fact issubject to rebuttal by the accused and in the absence ofrebuttal presumption stands.

88.6. (f) In the event the complainant turns “hostile”,or has died or is unavailable to let in his evidenceduring trial, demand of illegal gratification can beproved by letting in the evidence of any other witnesswho can again let in evidence, either orally or bydocumentary evidence or the prosecution can prove thecase by circumstantial evidence. The trial does notabate nor does it result in an order of acquittal of theaccused public servant.

88.7. (g) Insofar as Section 7 of the Act is concerned,on the proof of the facts in issue, Section 20 mandatesthe court to raise presumption that the illegalgratification was for the purpose of motive or rewardas mentioned in the said Section. The said presumptionhas to be raised by the court as legal presumption ora presumption in law. Of course, the said presumptionis also subject to rebuttal. Section 20 does not apply toSections 13(1)(d)(i) and (ii) of the Act.

88.8. (h) We clarify that the presumption in law underSection 20 of the Act is distinct from presumption offact referred to above in sub-para 88.5(e), above, asthe former is mandatory presumption while the latteris discretionary in nature.

XXXXXXXX

Signature Not Verified

90. Accordingly,thequestionreferredforconsideration of this Constitution Bench is answered asunder:

Intheabsenceofevidenceofthe complainant (direct/primary,oral/documentaryevidence) it is permissible to draw an inferentialdeduction of culpability/guilt of public servantunder Section 7 and Section 13(1)(d) read withSection13(2)oftheActbasedon otherevidence adduced by the prosecution.

(emphasis supplied)

30.Clearly, in order to bring home the guilt of the accused, theprosecution has to first prove the demand of illegal gratification and thesubsequent acceptance as matter of fact in issue. The said fact can beproved either by direct evidence which can be in the nature of oralevidence or documentary evidence or by circumstantial evidence in theabsence of direct, oral and documentary evidence. In other words, mereacceptance or receipt of an illegal gratification without anything morewould not make it an offence under Section 7 or Sections 13(1)(d) ofthe Act.

31.Theprosecutioninthepresentcasehasexaminedthecomplainant/Subhash Chand as PW-2 in order to establish thefoundational fact of demand and acceptance made by the appellants; Sh.H.S. Saroha has been examined as PW-4 to prove the recovery of bribemoney and Sh. Ram Gopal was examined as PW-5 (shadow witness) toprove and corroborate the fact of demand and acceptance.

32.A perusal of the testimony of PW-4 shows that he remained inthe vehicle with CBI official, S.K. Peshin (PW-7), while PW-5/Ram

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

Gopal was sent along with the complainant to meet the appellants. It isclear from the testimony of PW-4 that he did not support the case of theprosecution and feigned ignorance as regard the pre-raid proceedingsand various other events during the raid. He was, therefore, declaredhostile and cross-examined by the learned Public Prosecutor. Duringcross-examination, he supported the case of the prosecution only to theextent of recovery having been made of 30 GC notes of Rs.100denomination each, from the right pocket of the jeans of theappellant/Sanjiv Sharma. The relevant part of the testimony of PW-4reads as under:

Examination in chief of PW-4

“About 3 or 4 years back, I visited CBI Office alongwith ShriRam Gopal, Office Assistant, on the directions of my seniorofficer Shri R.C.Verma. There we reported to Shri S.K. Peshin,DSP before lunch hours. I am not sure of the time. Probablywereachedtherebetween11.00AMto12.00Noon.Complainant was already present there. I do not remember hisname. I do not remember, whether or not his complaint wasshown to me. I did not talk to complainant regarding theallegations in his complaint. 30 GC notes of Rs. 100/-denomination each were used for the trap. I do not rememberwho produced those GC notes. Numbers of these GC noteswere written on paper. I do not remember whether thosenumbers were written in my presence or those were writtenbefore my arrival in the CBI office. Said GC notes were treatedwith chemical powder. I do not remember its name. Onedemonstration regarding the reaction of said powder wasgiven. For that purpose solution was prepared, but I do notremember other details of the demonstration.”

Cross examination by the prosecution

“I do not remember, therefore, I cannot admit or deny that 30GC notes of Rs. 100 denomination each were produced by

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

Subhash Chand and their numbers were recorded in mypresence in the annexure-A.

xxxxxxxxxxxx

It is correct that we reached there at 12.30 P.M. Vehicles at adistanceof50 yardsfromDESUOffice.From there,complainant and Ram Gopal were sent to contact the accused.Myself and S.K. Peshin remained sitting in vehicle and othermembers of trap party got down from the vehicle and startedroaming around. It is incorrect to suggest that I took positionacross the road with Inspector A.G.L. Kaul. 15 – 20 minuteslater, Ram Gopal gave pre-appointed signal by putting hishand on his head and on this we rushed to the spot and twoinspectors of CBI apprehended accused Sanjiv Sharma presentin the court outside DESU Office near one shop. Accused wasapprehended from his arms which pulled back.

xxxxxxxxxxxx

In the room of R.K. Gupta, I was directed to take the search ofSanjiv Sharma. On search, I recovered aforesaid 30 G.C. notesof Rs. 100/- denomination each from the right pocket of thepant of the accused. Thereafter, myself and C.B.I. officerschecked the numbers of recovered G.C. notes and comparedthemwiththenumbersnoteddownintheannexuresEX.P.W.2/E and G.C. notes were found to be the same.

xxxxxxxxxxxxxxxx

I do not remember therefore, I cannot admit or deny thataccused Sanjiv Sharma did not tell Shri S.K. Peshin, DSP thathe has accepted tainted Rs. 3000/- from the complainant on thedirections of accused R.K. Gupta. I do not remember what wassaid by complainant to S.K. Peshin, therefore, I cannot admitor deny if on the challenge by DSP S.K. Peshin, accused SanjivSharma told that complainant had asked him to take Rs. 3000/-for delivery to R.K. Gupta, which he refused to do.

xxxxxxxxxxxxxxxx

I do not remember whether or not I stated in my statement toC.B.I. that accused Sanjiv Sharma on the challenge of Sh. S.K.

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

Peshin, DSP responded that the said money was accepted byhim on the directions of Shri R.K. Gupta who was available inhis office.”

33.Insofar as role of PW-5 is concerned, he was joined in the raidingparty and was specifically ordered to go along with the complainant on07.04.1995 and hear the conversation between the complainant and theappellants and also to see the transaction of acceptance of bribe by theaccused/appellants. The relevant part of the testimony of PW-5 reads asunder:-

Examination in chief of PW-5

“I was directed to remain with the complainant with view tohear the conversation and watch the transaction. I alsodirected that in the event of acceptance of bribe by the accusedI should signal to the trap party by placing both my hands onmy head.

xxxxxxxxxxxxxxxx

After getting down from the vehicle myself and the complainantwere sent to contact the accused in his office. Other membersof the trap team took position on side outside the DESU. Wemet some DESU employees and the complainant enquiredabout the whereabouts of the concerned Inspector from them.I do not remember the name of said Inspector of DESU aboutwhom the complainant had asked. Those DESU employeesinformed that the said Inspector had gone out and we shouldcome after some time. No other conversation took place withsaid DESU employees.”

-Cross examination of PW5 by prosecution

“It is wrong to suggest that when after getting down from thevehicle, and proceeding towards the office of the accused, wereached at the entrance gate of DESU office, where we metaccused R.K. Gupta. (Witness is confronted with portion to

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

of his statement Ex.P.W.5/A witness states that he does notremember whether he made such statement to C.B.I.). I do notremember, therefore, I cannot admit or deny if followingconversation took place between R.K. Gupta and the SubhashChand:-

R K Gupta- Rupaye ka intzaam huha.Subhash Chand- Pure pachees hazar (Rs. 25,000), kaintzaam hua hai. Inspector Saheb kahan hai?R K Gupta- Abhi bahar gaye hain pandrah minutemeing aa rahein hai.

Subash Chand- Acha main unka intazaar karoonga.

(witness is confronted with partition to of his statementEx.PW5/A where is so recorded and he states that he does notremember whether he made such statements to CBI). I do notremember, therefore I cannot admit or deny if after the saidconversation myself and complainant came out from the officeand informed Insp. Shri S.K. Peshin, DSP that Shri R.K.Gupta, Assistant Engineer has told us that accused SanjivSharma was not present in his office and he is likely to comewithin 15 minutes.

I do not remember what conversation took between them. Ido not remember, therefore, I cannot admit or deny if westarted walking alongwith accused Sanjiv Sharma towardsthe main road and while walking following conversation tookplace:

Subhash Chand:- Sahab aapka intazar kar raha tha.Gupta sahib ne kaha 15 minute tak aa rahen hai.

Sanjeev Sharma:- Ha main bahar gaya tha. Rupayelaye ho.

Subhash Chand:- Sahab 3000/- rupaye laya hun.

Sannjeev Sharam:- Ise kuch nahin baneja. Pure25000/- dene honge.

Subhash Chand:- Mera kaam kab ho jayega.

Signature Not Verified

Sanjeev Sharma:- Iski phikar na karo.

(witness is confronted with portion to of statementEx.P.W.5/A where it is so recorded. He denies having madesuch statement to C.B.I.). I do not remember if after crossingthe road and reaching at the other end of the main road,accused Sanjeev Sharma said to the complainant “Rupaye dedo”. (Vol.) However, I saw him extending his hand.

xxxxxxxx

It is wrong to suggest that on this accused Sanjeev Sharmasaid that he had accepted the money from the complainant onthe directions of Shri R.K. Gupta, accused who was availablein his office.

xxxxxxxxxxxxxxxx

I do not remember, therefore, I cannot admit or deny that whenCBI team reached near the DESU Office, accuse SanjivSharma pointed towards accused R.K. Gupta present in court,who was trying to escape.

xxxxxxxxxxxxxxxx

It is incorrect to suggest that I have desposed falsely and givena distorted version in order to save the accused. It is correctthat office table of accused R.K. Gupta was searched and abunch of papers were recovered and seized. I cannot admit ordeny if those papers related to electricity connection ofSubhash Chand.”

(emphasis supplied)

34.Evidently, PW-5 has supported the case of the prosecution onlyto the extent that complainant took out money from the pocket of hispant and extended the same towards the appellant/Sanjiv Sharma, whoafter accepting the money in his right hand kept it in the right frontpocket of his jeans and thereafter, he gave signal to the CBI by puttingboth hands on his head.

35.PW-5 has not at all stated that on the said date when he

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

accompanied the complainant/PW-2, they had met the appellant/R.K.Gupta. On the contrary, he has stated that when he along with thecomplainant were sent to contact the appellant / R.K. Gupta in hisoffice, they met some DESU employees and the complainant enquiredfrom them about the whereabouts of the concerned Inspector and thesaid DESU employees informed that the Inspector had gone out andthat they should come after some time. According to PW-5 no otherconversation took place with the said DESU employees.

36.Conspicuously, PW-5 has not stated having met appellant/R.K.Gupta and the said appellant having directed them to go and meetappellant/Sanjiv Sharma, rather the said witness has denied thesuggestion of having met R.K. Gupta on 07.04.1995. He stated that hedoes not remember that any suggested conversation took place betweenthe complainant and appellant/R.K. Gupta.

37.He also stated that the appellant/Sanjiv Sharma and complainantwere talking while walking towards main road but he does notremember what conversation took between them. He also feignedcomplete ignorance about the suggested conversation having takenplace between the complainant and appellant/Sanjiv Sharma withregard to demand of bribe money. Thus, there is nothing in thetestimony of PW-5 wherefrom it could be discerned that the appellantshad demanded bribe from the complainant on the date when the raidwas conducted i.e. 07.04.1995.

38.Upon exclusion of testimonies of PW-4 and PW-5, the only pieceof evidence which is available to prove the foundational fact of demandhaving originated from the appellants, either on the date of raid i.e.

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

07.04.1995 or on 05.04.1995, is the statement of complainant/PW-2.Since lot turns on the testimony of complainant/PW-2, apposite wouldit be to reproduce the relevant excerpts from the complainant’sstatement, which reads as under:

Examination in Chief of PW-2

“I contacted R.K. Gupta Assistant Engineer in respect of myaforesaid application for power connection. Said R.K. Guptaaccused present in Court. (Correctly identified) R.K. Guptaadvised me to contact Inspector Sanjiv Sharma, accused present inthe Court (correctly identified in order to settle the amount ofbribe to be paid for getting the power connection. Thereafter, Imet accused Sanjiv Sharma who demanded sum of Rs.25,000/-for doing the work. I showed my inability to immediately payRs.25,000/-. On this, accd. Sanjiv Sharma directed me to at leastpay first instalment of Rs.3,000/-, so that action on my applicationmay be taken. Remaining amount was to be paid after the work.Sanjiv Kumar told me to pay that amount of Rs.3,000/- on 7-4-1995. After giving thought to the unreasonable demand I wentto CBI office on 7-4-1995 at about 9-30 AM. There I met S.P.Anti-corruption and narrated the matter to him S.P. Anti-corruption also interrogated me regarding the facts. I submittedmy written complaint Ex.PW2/C to the S.P. CBI.

xxxxxxxxxxxx

From there, I and witness Ram Gopal proceeded towards DESUoffice and we met accused R.K. Gupta present in the court justoutside the gate of DESU office. He was sitting on two-wheelerscooter.

Accused R.K. Gupta asked, “RUPEE KA INTZAM HUA HE”? Ireplied, “POORE PACHHIS HAZAAR RUPEY KA INTEZAMHUA HE INSPECTOR SAHIB KAHAN HEN.

CRL.A.246/2005 & CRL.A. 248/2005

Page 23 of 36

10/15 minutes later Inspector Sanjiv Sharma came and I met himnear the gate. I said, MAIN AAP KI INTZAR KAR RAHA THA,GUPTA SAHIB NEN KAHA THA APP BAHAR GAIN HAIN. Tothis, accused Sanjiv Sharma replied. HAAN MAIN BAHAR GAYATHA, RUPEE LAYE HO. I replied. TIN HAZAR RUPEE LAYAHOON. On this accused Sanjiv Sharma said POORE HI DAINENHON GEY. Then I asked MAIRA KAAM TO KAR DO GE. On this,ACCUSED SANJIV SHARMA SAID, “FIKAR MAT KARO”. Whilehaving this conversation, we crossed the road. After crossing theroad, Sanjiv Sharma, told me to give money to him. On this, I tooktainted Rs. 3,000/- from my pocket and gave it to the accusedSanjiv Sharma. Sanjiv Sharma accepted the money in his righthand and kept it in right pocket of his jean. As soon as accd. SanjivSharma, accepted the money, witness Ram Gopal gave the signalto CBI officials.”

Cross Examination of PW-2

“I do not know if anyone had reported against my drawing ofelectricity from the said three phase connection of my uncle. It iscorrect that on 10-3-95 enforcement department of DESU hadraided my factory.

Aforesaid enforcement team comprised of both the accusedpersons present in the court and 2 or 3 other officials. I do notremember for how much time they remained at my factory on 10-3-95. However, I was present in the factory during said period. Mymachines or the load was not checked by the enforcement team.Enforcement team has told me that there was complaint ofpower theft against me.

I submitted my application for three phase connection incommercial branch of DESU at Krishna Nagar Office.I have no idea, therefore, I cannot admit or deny that both the

Signature Not Verified

accusedpersonshadnoconnectionwiththeaforesaidcommercial branch of DESU. I had deposited requisite fee asdemanded by aforesaid office.

xxxxxxxxxxxx

I had met SP. CBI/ACB on 5-4-94. I do not remember if I methim on 7-4-95. I did not submit my complaint to S.P. CBI/ACBon 5-4-95. I do not remember if my entry in the visitor register wasmade either on 5-4-95 or 7-4-95. On 5-4-95 I met only SP CBI andno other CBI official. I do not remember the name of aforesaid SP,C.B.I.

xxxxxxxxxxxx

I do not remember the description of SP, CBI/ACB, whom I hadmet.

xxxxxxxxxxxx

It is correct that RK Gupta was member of the raid party, whichhad come from Enforcement Department. It is incorrect tosuggest that I got accused RK Gupta involved in this case to getrid of legal action at the instance of DESU in the court of law.

I do not remember the time at which I met accused RK Gupta on5-4-95. I do not remember whether or not, anyone accompaniedme to RK Gupta on 5-4-95. I do not remember if anyone waspresent in the room of R.K.Gupta when I met him there on 5-4-95.”

(emphasis supplied)

39.Before examining the testimony of the complainant / PW-2, it isimperative to note that one of the defences set up by the appellants isthat they have been falsely implicated by the complainant as theappellants were part of the enforcement team which raided the premisesof the complainant on complaint being made regarding electricity

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

theft against the complainant from three phase electricity connectionfrom the adjoining factory of his uncle Ram Kishan.

40.The factum of raid by the enforcement team on 10.03.1995 i.e.about four weeks prior to the incident, has been admitted by thecomplainant in his cross-examination. The complainant has furtheradmitted that the enforcement team comprised of both the appellantspresent in the Court and 2-3 other officials. He has also admitted thatenforcement team had informed him that there was complaint ofpower theft against him. During cross-examination of complainant /PW-2 suggestion has also been put to him on behalf of theappellant/R.K. Gupta that the complainant has got him involved in thecase to get rid of any legal action which DESU might have takenagainst the complainant in the court of law.

41.Pertinently, the appellants in their defence had examined Sh.R.K. Malhotra, the then Assistant Engineer (Enforcement) as DW-4,who has stated that complaint was received by him that M/s Jeet AutoIndustriesofMohallaGandhiNagar,thepartnershipfirmofcomplainant was stealing electricity in March, 1995. Consequently, hehad formed raid party of his officials and reached the Zonal Office on10.03.1995. He was also joined by appellant/R.K. Gupta (AE) andappellant/Sanjiv Sharma (Inspector) and went to the premises of M/sJeet Auto Industries. The said witness also proved the joint inspectionreport of the premises of M/s Jeet Auto Industries.

42.A joint director of CBI was also examined as DW-6 by theappellants who deposed that on 06.01.1995, he had made complaintagainst M/s Jeet Auto Industries (factory of the complainant) regarding

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

stealing of power directly from the pole. He had also deposed that hehad sent letter to Director (Vig.) DESU, Rajghat Power House, Delhifor taking necessary action.

43.Now coming to the testimony of complainant/PW-2, he hastestified having met R.K. Gupta on 05.04.1995 and the latter havingdirected him to meet appellant/Sanjiv Sharma to settle the bribe amountto be paid for getting the work done. He then met appellant/SanjivSharma on 05.04.1995, who demanded an amount of Rs.25,000/- fordoing the work, however, on the request of the complainant he askedthe complainant to pay at least Rs.3,000/- as first installment of bribeamount. Incidentally, in his cross-examination he has failed to specifyand feigned ignorance as to the time at which he allegedly met theappellant/R.K. Gupta on 05.04.1995; whether anybody accompaniedhim during the said visit; whether anyone else was present in the roomwhere he allegedly met the appellant/R.K.Gupta. Thus, the complainant(PW-2), who has failed to give the graphic details of an alleged meetingwith appellants or is not able to remember the relevant details, cannotbe believed without corroboration, particularly given the backdrop thatappellants were part of the enforcement team which raided his factorypremises on the basis of complaint of electricity theft and the possibilityof complainant acting with oblique motive in order to falsely implicatethe appellants cannot be ruled out.

44.Further, in his cross-examination, the complainant/PW-2 hasstated that even on 05.04.1995 i.e., when he had met the appellants forthe first time, he had also met SP, CBI, ACB but admittedly, he did notsubmit any complaint to him. He has stated that he did not even know

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

the name of said SP, CBI nor he remembers his description.Intriguingly, when the complainant had met senior CBI official on05.04.1995, it is not understandable as to why he did not make anycomplaint to the CBI on the said date nor any justification in that behalfisforthcoming.Thisalsoraisesdoubtabouttruthfulnessofcomplainant’s testimony with regard to the incident of 05.04.1995.

45.As regards the incident of 07.04.1995, there is materialcontradiction in the statements of complaint/PW-2 and shadowwitness/PW-5.As per the complainant/PW-2, he had met appellant/R.K.Gupta on 07.04.1995, who was sitting on his two- wheeler scooteroutside the gate of DESU Office, whereas PW-5 has stated that theyhad met DESU employees who told them that concerned Inspectorwould be coming within 10-15 minutes. As noted above, PW-5 does notrefer to any meeting with appellant/R.K. Gupta on the said date whenhe had accompanied the complainant. This contradiction as to thecomplainant/PW-2 meeting appellant/R.K. Gupta on 07.04.1995 andthere being demand by the appellants on the said date, raisesconsiderable doubt about truthfulness of prosecution version and theveracity of evidence of complainant/PW-2.

46.Even otherwise, the complainant/PW-2 being an interestedwitness who could be inimical towards the appellants, it will not be safeto base the conviction of the appellants on the sole testimony of thecomplainant, in the absence of any corroboration from the independentwitness[1], which in the present case is not available, in so far as the

12022 SCC OnLine SC 1107 : Rajesh Gupta v. State through CBI

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

foundational fact of demand is concerned.

47.Thus, the prosecution has failed to discharge its burden toestablish beyond reasonable doubt that the appellants demanded illegalgratification. On the other hand, the possibility of false implication ofappellants cannot be ruled out given the timing of complaint by thecomplainant against the appellants being within period of one monthof the raid on the factory premises of the complainant by theEnforcement team of DESU which comprised of appellants as well.Therefore, the appellants on the touchstone of preponderance ofprobability have succeeded to probabilize their defence.

48.The learned Trial Court has observed that there is sufficientcircumstantial evidence to support the testimony of the complainantinsofar as demand is concerned. The circumstances which, according tothe learned Trial Court, corroborates the evidence of the complainantare that – (i) the complainant went to the CBI office and made acomplaint in writing naming both the appellants and clearly stating thefacts, and (ii) he gave Rs. 3,000/- for laying the trap and went throughthe entire procedure for getting the appellants trapped. For proving acase on basis of circumstantial evidence, it must be established that thechain of circumstances is complete and consistent with the onlyconclusion of guilt. This Court is of the view that the aforesaidcircumstances do not corroborate the demand but only refers to the pre-trap proceedings, therefore, no inference of demand having been madeby the appellants can be drawn from them.

49.In so far as the recovery of alleged bribe money is concerned, tobe noted that there is no recovery from the appellant/R.K. Gupta. The

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

third charge against the appellant/R.K. Gupta only pertains to recovery.Incidentally, the third charge does not mention the date but alludes tothe incident of 07.04.1995 (first two charges refer to the incident of05.04.1995). perusal of said charge shows that it pertains to thealleged obtainment of pecuniary advantage of Rs. 3000/- by theappellant / Sanjiv Sharma from the complainant. The said charge doesnot attribute either any demand or acceptance by the appellant/R.K.Gupta and the narrative of the events is confined to the appellant/SanjivSharma. Also, the offence of Section 120B IPC is not added to theoffence alleged under Section 13(1)(d) read with Section 13(2) of theAct, therefore, appellant/R.K. Gupta could not have been implicated inthe acts attributed to appellant/Sanjiv Sharma.

50.As per prosecution version, the recovery is only from theappellant/Sanjiv Sharma. In this regard, suffice it to say that mererecovery of tainted money is not sufficient to convict the accused, whenthe substantive evidence is not reliable. The law is well settled thatmere possession of recovery of currency notes from an accused withoutproof of demand would not establish an offence under Section 7, aswell as, Section 13(1)(d) of the Act. In other words, mere acceptance ofany amount by way of illegal gratification or recovery thereof de horsthe proof of demand, ipso facto would not be sufficient to bring homethe charge under the said sections. The proof of demand has repeatedlybeen held by various pronouncements of Hon’ble Supreme Court to bean indispensable essentiality for an offence under Sections 7 and 13 ofthe Act. Proof of acceptance of illegal gratification could follow only ifthere was proof of demand. Reference in this regard may be had to the

CRL.A.246/2005 & CRL.A. 248/2005

decision of B. Jayaraj (surpa), wherein three Judges bench of theHon’ble Supreme Court held as under:

“7. Insofar as the offence under Section 7 is concerned, itis settled position in law that demand of illegalgratification is sine qua non to constitute the said offenceand mere recovery of currency notes cannot constitute theoffence under Section 7 unless it is proved beyond allreasonable doubt that the accused voluntarily accepted themoney knowing it to be bribe. The above position hasbeen succinctly laid down in several judgments of thisCourt. By way of illustration reference may be made to thedecision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 :(2013)2SCC(Cri)89]and C.M.GirishBabu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1]

xxxxxxxx

9. Insofar as the presumption permissible to be drawnunderSection20oftheActisconcerned,suchpresumption can only be in respect of the offence underSection 7 and not the offences under Sections 13(1)(d)(i)and (ii) of the Act. In any event, it is only on proof ofacceptance of illegal gratification that presumption can bedrawn under Section 20 of the Act that such gratificationwas received for doing or forbearing to do any official act.Proof of acceptance of illegal gratification can follow onlyif there is proof of demand. As the same is lacking in thepresent case the primary facts on the basis of which thelegal presumption under Section 20 can be drawn arewholly absent.

10. For the aforesaid reasons, we cannot sustain theconviction of the appellant either under Section 7 or underSections 13(1)(d)(i) and (ii) read with Section 13(2) of theAct. Accordingly, the conviction and the sentences imposedon the appellant-accused by the trial court as well as theHigh Court by order dated 25-4-2011 [B. Jayaraj v. State,

Signature Not Verified

Criminal Appeal No. 99 of 2005, decided on 25-4-2011(AP)] are set aside and the appeal is allowed.”

(emphasis supplied)

51.Carrying the above enunciation further, the Hon’ble SupremeCourt in P. Satyanarayana Murthy vs. The District. Inspector OfPolice, & Ors., (2015) 10 SCC 152 (three Judges bench), exposited asunder:

“22. In recent enunciation by this Court to discern theimperative pre-requisites of Sections 7 and 13 of the Act, ithas been underlined in B. Jayaraj (supra) in unequivocalterms, that mere possession and recovery of currency notesfrom an accused without proof of demand would notestablish an offence Under Sections 7 as well as 13(1)(d)(i) &(ii) of the Act. It has been propounded that in the absence ofany proof of demand for illegal gratification, the use of corruptor illegal means or abuse of position as public servant toobtain any valuable thing or pecuniary advantage cannot beheld to be proved. The proof of demand, thus, has been heldto be an indispensable essentiality and of permeatingmandate for an offence Under Sections 7 and 13 of the Act.Qua Section 20 of the Act, which permits presumption asenvisaged therein, it has been held that while it is extendableonly to an offence Under Section 7 and not to those UnderSection 13(1)(d) (i) & (ii) of the Act, it is contingent as wellon the proof of acceptance of illegal gratification for doing orforbearing to do any official act. Such proof of acceptance ofillegal gratification, it was emphasized, could follow only ifthere was proof of demand. Axiomatically, it was held that inabsence of proof of demand, such legal presumption underSection 20 of the Act would also not arise.

23. The proof of demand of illegal gratification, thus, is thegravamen of the offence Under Sections 7 and 13(1)(d)(i) &(ii) of the Act and in absence thereof, unmistakably the

charge therefor, would fail. Mere acceptance of any amountallegedly by way of illegal gratification or recovery thereof,dehors the proof of demand, ipso facto, would thus not besufficient to bring home the charge under these two sectionsof the Act. As corollary, failure of the prosecution to provethe demand for illegal gratification would be fatal and mererecovery of the amount from the person accused of theoffence under Sections 7 or 13 of the Act would not entail hisconviction thereunder.

xxxxxxxxxxxx

26. In reiteration of the golden principle which runs throughthe web of administration of justice in criminal cases, thisCourt in Sujit Biswas v. State of Assam (2013) 12 SCC 406had held that suspicion, however grave, cannot take the placeof proof and the prosecution cannot afford to rest its case inthe realm of "may be" true but has to upgrade it in thedomain of "must be" true in order to steer clear of anypossible surmise or conjecture. It was held, that the Courtmust ensure that miscarriage of justice is avoided and if in thefacts and circumstances, two views are plausible, then thebenefit of doubt must be given to the accused.”

(emphasis supplied)

52.The reading of the above authoritative pronouncements of theSupreme Court, makes it plain that the prosecution having failed toestablish any demand for bribe as alleged, no presumption underSection 20 of the Act would arise. It is also settled law that Section 20does not apply to the offence under Section 13(1)(d) of the PC Act[2]which deals only with the aspect of “obtainment”. Incidentally, in thepresentcasetheallegationsareof“obtainment”andnotof

2Khaleel Ahmed vs. State of Karnataka, (2015) 16 SCC 350 ; Neeraj Dutta (supra)

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

“acceptance”.[3]This being the position, the decisions in M. NarasingaRao (supra) and T. Shankar Prasad (supra), relied upon by the learnedSPP for the CBI, on the aspect of drawing legal presumption underSection 20 of the Act do not advance the case of the prosecution.53.Insofar as charge under Section 120B of IPC is concerned,intriguingly, in the impugned judgment there is no discussion withregard to the offence under Section 120B IPC. Three essential elementsmust be shown - criminal object, plan or scheme embodying meansto accomplish that object, and an agreement between two or morepersons to cooperate for the accomplishment of such object - to makean offence of criminal conspiracy.[4]In the present case, the charge ofconspiracy under section 120B IPC cannot stand as the prosecution hasfailed to prove beyond reasonable doubt by way of any direct orcircumstantial evidence that there was prior meeting of mind betweenthe appellants to demand illegal gratification from the complainant.Even the charge framed against the appellants does not show anymeeting of minds or arrival at any agreement of any criminal objectbetween them.

54.The case of the prosecution is that the complainant had met theappellant/R.K. Gupta on 05.04.1995 and he was asked to meet theappellant/Sanjiv Sharma to settle the bribe amount. Thereafter, thecomplainantmettheappellant/SanjivSharmawhodemandedRs.25,000/-asbribe.Thereisnoevidencetosuggestthatappellant/R.K. Gupta and appellant/Sanjiv Sharma were already in

3C.K. Damodaran Nair v. UOI, (1997) 9 SCC 477 ; Neeraj Dutta (supra)

4(2019) 10 SCC 623 : Rajender alias Rajesh alias Raju vs. State (NCT of Delhi)

CRL.A.246/2005 & CRL.A. 248/2005

Page 34 of 36

Signature Not Verified

communication with each other with regard to obtaining of illegalgratification from the complainant nor it is the case of the prosecutionthat appellant/R.K. Gupta spoke to appellant/Sanjiv Sharma in thepresence of complainant. Thus, there are no circumstances to indicatethe existence of the essential elements of criminal conspiracy in theinstant case.

55.Further, the charge of conspiracy is premised only on thecomplaint of the complainant/PW-2, who is an interested witness. Asnoted above the law is well-settled that the sole testimony of thecomplainant, who is the interested witness, cannot be relied uponwithout having corroboration with the independent evidence, which iscompletely lacking insofar as charge of conspiracy and the foundationalfact of demand, is concerned.

56.The learned SPP for CBI has relied upon the decisions of theHon’ble Supreme Court in Koli Lakhmanbhai Chanabhai (supra),Attar Singh (supra) and Devraj (supra), to contend that evidence of ahostile witness can be relied upon to the extent to which it supports theprosecution version. There is no quarrel to the said proposition of law.As noted above PW-4 and PW-5 turned hostile and did not support thecase of prosecution in proving the foundational fact of demandoriginating from the appellants. They have supported the case of theprosecution only to the extent of recovery of currency notes from theappellant/Sanjiv Sharma. In view of the settled law, mere recovery ofamount from the person accused of the offence under Sections 7 or 13of the Act would not entail his conviction thereunder without

CRL.A.246/2005 & CRL.A. 248/2005

Signature Not Verified

prosecution proving the demand for illegal gratification. Therefore, thesaid decisions do not further the case of respondent/CBI.

57.On an overall conspectus of evidence on record and the positionof law noted hereinabove, this Court is of the opinion that it is case inwhich no cogent evidence is available to prove the guilt of appellantsfor the charged offences. There is no proof of demand at pre-trap orduring trap. The prosecution has failed to prove the charges against theappellants beyond all reasonable doubt. Therefore, the appeals areallowed and appellants are held not guilty. Consequently, the impugnedjudgment dated 11.03.2005 convicting the appellants and the order onsentence dated 14.03.2005, passed by the learned Special Judge are setaside.

58.The appeals stand disposed of.

VIKAS MAHAJAN, J.

SEPTEMBER 19, 2024N.S.ASWAL/dss

CRL.A.246/2005 & CRL.A. 248/2005