Total summary
Appeal and Impugned Judgment
The appeals were filed by the two accused against the common judgment and order of the High Court of Gujarat dated 04.09.2014, whereby the High Court partly allowed the State’s appeals against their acquittal, set aside the acquittal in respect of the offences under Sections 7, 12 and 13(1)(d) of the Prevention of Corruption Act, 1988, while maintaining the acquittal under Section 120B IPC, and convicted the accused, thereby reversing the judgment of the trial court. Factual Matrix: The criminal case arose from an allegation that the complainant, who required a certificate relating to his land, was allegedly asked by the first accused, a Talati-cum-Mantri, to pay illegal gratification of ₹120; a trap was thereafter arranged, ₹20 was allegedly accepted by the second accused, and phenolphthalein-related trap proceedings were conducted, leading to prosecution of both accused under the Prevention of Corruption Act and Section 120B IPC. [Paras. 1–5]
Trial and Appellate Courts Verdicts
The trial court, after appreciating the evidence, acquitted both accused of all charges, finding the prosecution case insufficient to establish the offences beyond reasonable doubt; however, in the State’s appeals, the High Court upheld the acquittal under Section 120B IPC but reversed the acquittal under Sections 7, 12 and 13(1)(d) of the Prevention of Corruption Act, holding the accused guilty and imposing conviction and sentence. [Paras. 6–9]
Core Legal Arguments
The appellants contended that the prosecution had failed to prove the foundational fact of demand of illegal gratification, that mere recovery of tainted currency could not sustain conviction, that the evidence of the complainant and other witnesses contained material inconsistencies, and that the sanction against the first accused was invalid because it had not been granted by the authority competent to remove him from office; the respondent-State, supporting the High Court’s judgment, relied on the recovery of the tainted currency, the trap evidence and the statutory presumption, contending that the evidence sufficiently established the offences. [Paras. 10–17]
Ratio Decidendi
Conviction under the relevant provisions of the Prevention of Corruption Act cannot be sustained merely on the recovery or possession of tainted currency unless the foundational fact of demand of illegal gratification is first proved beyond reasonable doubt; the statutory presumption under Section 20 does not arise in the absence of such proof, and where the prosecution evidence does not establish demand and acceptance with the requisite certainty, the conviction must fail. Further, sanction under Section 19(1)(c) must be granted by the authority competent to remove the public servant from office. [Paras. 16–18]
Important paragraphs
Analysis
Demand of rs. 120 was for issuing an income certificate
9) It would be necessary to first consider the aspect of demand, which has been held to be proved against A1. The trial Court recorded a finding that insofar as the aspect of demand is concerned, the same was proved as against A1 and that there is no demand by A2. This finding has been affirmed by the High Court. In this regard, it would be necessary to first consider the deposition of the complainant at Exhibit 13. He had stated that for the purpose of obtaining an Income Certificate, he had approached the office of the Mamlatdar and had made an application in that regard on 06.02.1996. That application was forwarded to the office of Talati-cum-Mantri of village Bechri. In that regard on 07.02.1996, A1 after seeing the papers had stated that complainant would have to pay ₹120/- for the certificate. From the said amount, ₹100/- was to be paid to A1 and ₹20/- for A2. This demand was repeated on 14.02.1996. It is, thereafter, that on 19.02.1996 that the complainant met A1 at the bus stand where he was told to get the Income Certificate of his father after which the certificate could be collected in the evening. The complainant was told to come with ₹120/-.
Complainant deposed that when he gave money to the A2 he did not inquire as to why he was giving only rs.20 instead of rs.120
11) The complainant further in his deposition stated that after lodging the complaint, he was instructed by the Anti-Corruption Bureau office to give the entire amount of ₹120/- in the form of two notes of ₹50/- and one note of ₹20/- to the accused. This fact is reiterated in the cross-examination of PW-3, the first Panchwitness, who admitted that the complainant was instructed to give all the currency notes when the demand was made by A1. On 19.02.1996, when he had gone to collect the Income Certificate, A1 and A2 were in the office. A2 was at a distance of one to two feet away from A1. The complainant admitted that if anyone talked with A1, A2 could have heard it. In his examination-in-chief, the complainant stated that after receiving the certificate along with other papers, the same were placed in his plastic bag. When the complainant stood up with the said papers, A1 demanded the amount of ₹120/- from him and told him that the said amount be given to A2. According to the complainant, as he understood that A2 was to be given ₹20/-, he took out the currency note of ₹20/- and gave it to A2, who thereafter placed it in his left pocket. In his cross-examination, the complainant stated that when A1 demanded ₹120/- from him, he did not take out the money from his pocket at that time. A2 did not demand any money from him. He further admitted that he was instructed at the Anti-Corruption Bureau office to take out the entire money from the pocket when it was demanded. Though A1 told him to give ₹120/- to A2, he understood it as to give ₹20/- to A2. He further admitted that when he gave the money to A2, A2 did not inquire as to why he was giving only ₹20/- though A1 had told him to give ₹120/-.
There is no explanation by the complainant that why he was not handed over the entire demand amount of rs.120 when he was instructed by Anti-Corruption bureau office
12) From the aforesaid evidence of the complainant, it becomes clear that though he was instructed to give the entire amount of ₹120/- on demand being made, he gave ₹20/- only to A2. Further, according to the complainant an amount of ₹120 was demanded from him after receiving the certificate and A2 was standing at a distance of one to two feet from A1. However, A2 did not inquire from the complainant as to why only ₹20/- was being given though A1 had told him to give an amount of ₹120/-. This again raises a doubt as regards demand of ₹120/- by A1 in the backdrop of the complainant giving ₹20/- to A2 despite being instructed to give the entire amount of ₹120/- whenever the demand was made. When this conduct of the complainant is considered along with his admission in the cross-examination that A2 did not make any demand, the entire episode gives rise to serious suspicion. There is no explanation as to why the instructions given to the complainant at the Anti-Corruption Bureau office of giving the entire amount of ₹120/- on demand were not followed.
Using of complainant’s fingers to pick up the demand money from his pockets have some bearing while considering the entire evidence
13) The complainant in his cross-examination volunteered to demonstrate as to how he took out the currency note of ₹20/- from his pocket for being given to A2. According to him, he held the said currency note with his first two fingers and thumb. PW-3 who acted as Panch was examined vide Exhibit 26. In his crossexamination, he stated that he knew as to how the complainant gave the money to A2. He stated that the complainant took out the currency note of ₹20/- from his left pocket using all five fingers of his right hand. He denied the suggestion that the complainant took out the money using his three fingers, his thumb and two other fingers. Though the aforesaid could be termed as a discrepancy when considered in isolation, the same would have some bearing while considering the entire evidence, especially as regards demand and giving of the amount of bribe. In our view, the prosecution evidence is insufficient to hold that demand of ₹120/- by A1 was proved beyond reasonable doubt.
Conspiracy did not prove; hence, the trial itself acquitted, and the High Court did not interfere with
14) It is also material to note that both the accused were also charged with having hatched a criminal conspiracy to demand and receive the amount of bribe from the complainant. The said charge was under Section 120B of the Penal Code. The trial Court, however, on consideration of the evidence on record held that prosecution had failed to bring on record any evidence to substantiate this charge. It, therefore, acquitted both the accused from the offence punishable under Section 120B of the Penal Code. Though the State Government preferred an appeal before the High Court seeking enhancement in the amount of punishment imposed on the accused, their acquittal under Section 120B of the Penal Code has not been interfered with by the High Court. This aspect assumes relevance in view of the fact that both the Courts have held that it was proved that A1 had made the demand of bribe while it was only A2 who received the amount of ₹20/-. The demand as against A2 was held to be not proved. Similarly, A1 was not found with any bribe amount.
Legal analysis
Section 20 presumption of the Act of 1988
15) It was sought to be urged on behalf of the prosecution that the presumption under Section 20 of the Act of 1988 would arise once it was proved that the bribe amount of ₹20/- was received by A2. This contention cannot be accepted for the reason that the statutory presumption under Section 20 of the Act of 1988 would come into play only after the initial demand is proved by the prosecution beyond reasonable doubt. If the initial demand itself is not proved, mere recovery of the amount of ₹20/- from A2 would not resurrect the case of the prosecution to enable the Court to hold that the charge was proved. This position is clear in view of the decision of the three Judge Bench in N. Vijayakumar (supra). The High Court in the impugned judgment has proceeded to draw presumption under Section 20 of the Act of 1988 on the premise that both the accused were public servants and that A2 was found in possession of the currency note smeared with anthracene powder. It is clear from the evidence brought on record by the prosecution that the demand by A1 itself is doubtful and, hence, not proved. The presumption under Section 20 of the Act of 1988, therefore, cannot be drawn in such a situation.
16) Another relevant aspect that cannot be ignored is that the amount of ₹20/- was given by the complainant to A2 after receiving the Income Certificate from A1. This is another relevant factor that requires consideration inasmuch as the Income Certificate for the issuance of which it was alleged that the bribe was demanded had already been prepared and was handed over to the complainant. When this circumstance is considered in totality of the prosecution material on record, it again raises a doubt as the Income Certificate was duly prepared and handed over to the complainant by A1, after which he gave the amount of ₹20/- to A2. Reference in this regard can be made to the decision in State of Lokayuktha Police, Davanagere (supra) wherein it was held that ipso facto, it cannot be assumed that such payment was pursuant to a demand made.
Cognizance of an offence under sections 7 and 13 cannot be taken unless previous sanction
17) According to the learned counsel for the appellants, the sanction granted to the prosecution of A1 was invalid in view of the fact that the same was granted by PW-2, who was holding the post of Deputy District Development Officer. As A1 was holding the post of Talati-cum-Mantri, sanction for his prosecution was required to be granted by the District Development Officer. This was for the reason that the District Development Officer was the authority competent to remove a Talati-cum-Mantri from his office. As A1 was holding the post of Talati-cum-Mantri, the provisions of Section 19(1)(c) of the Act of 1988 would be required to be complied with. As per the said provision, cognizance of an offence punishable under Sections 7 and 13 of the Act of 1988 cannot be taken unless there is previous sanction of the authority competent to remove the public servant from office. In his deposition at Exhibit 24, PW-2 admitted that he was performing duties as a Deputy District Development Officer since September 1995. He further admitted that if a Talati-cum-Mantri desires to go abroad, he has to seek no objection of the Department and permission of the appointing authority. He admitted that in such a situation, it was the District Development Officer, who had authority to issue a no objection certificate. It has not been brought on record by the prosecution that a Deputy District Development Officer is empowered to remove a Talati-cum-Mantri from office. It may be true that A1 was initially appointed on ad-hoc basis as Talati-cum Mantri by an order issued by the Deputy District Development Officer. What is contemplated by Section 19(1)(c) of the Act of 1988 is the grant of sanction by an authority competent to remove the concerned public servant from office. When the sanction was sought, A1 was holding the substantive post of Talati-cum-Mantri and, hence, it was only the District Development Officer under the Gujarat Panchayats Act, 1961 who could have removed him from office. On this count, the sanction granted to the prosecution of A1 by the Deputy District Development Officer is found to be invalid. We would, however, not set aside the conviction of A1 solely on the ground of an invalid order of sanction. Even otherwise, we find on an appreciation of the entire material brought on record by the prosecution that it falls woefully short of proving the charge against both the accused beyond reasonable doubt.
Conclusion
18) Having found that the charge of demand of bribe amount has not been proved against A1 coupled with the fact that both the Courts have recorded a finding that no demand was made by A2, it is obvious that the case of the prosecution must fail. As noted above, mere possession of a currency note of ₹20/- with A2 by itself would not be sufficient to uphold the conviction of A1 and A2 for the offence punishable under Sections 7, 12 and 13(1)(d) of the Act of 1988. The defence raised by A2 that the festival of Eid was on the next day and, hence, the complainant gave ₹20/- to him after receiving the Income Certificate is also probable.
19) For all these reasons, the judgment of the trial Court in Special Case No.15 of 1996 dated 30.11.1999, as affirmed by the High Court in its common judgment dated 22.01.2015 in Criminal Appeal Nos.1343/1999 and 1344/1999 is set aside. The appellants are acquitted of the charge of having committed an offence punishable under Sections 7, 12 and 13(1)(d) of the Act of 1988. The appellants are presently enlarged on bail. Their bail bonds shall stand cancelled. The Criminal Appeals are, accordingly, allowed.
Resources
Judgments directly cited, referred to, quoted or used in the uploaded judgment
1. Gopalbhai Mohanbhai Nagoda v. State of Gujarat
Citation given in the judgment: 1993 II LLN 540.
Brief: Cited by the appellants to contend that, in relation to a Talati-cum-Mantri, the competent authority for granting sanction was the District Development Officer and that sanction by an incompetent authority would be invalid.
2. Shamji Karshan v. The State of Gujarat
Citation given in the judgment: 1974 SCC OnLine Guj 64.
Brief: Also relied upon by the appellants on the question of the competent authority to grant sanction for prosecuting a Talati-cum-Mantri.
3. Mohd. Iqbal Ahmad v. State of Andhra Pradesh
Citation given in the judgment: 1979 INSC 11.
Brief: Relied upon by the appellants to contend that a sanction granted without due application of mind could vitiate the proceedings.
4. N. Vijayakumar
Brief: The judgment relied on the principle that the statutory presumption under Section 20 of the Prevention of Corruption Act, 1988 can arise only after the prosecution proves the initial demand beyond reasonable doubt; mere recovery of the tainted amount cannot by itself establish the offence when the demand is not proved.
5. State of Lokayuktha Police, Davanagere
Brief: Referred to for the proposition that payment or receipt of money does not, by itself, justify an automatic inference that such payment was made pursuant to a demand for illegal gratification.
The Prevention of Corruption Act, 1988
- Section 7 — offence relating to illegal gratification by a public servant.
- Section 12 — punishment for abetment of offences under the Act.
- Section 13(1)(d) — criminal misconduct by a public servant, as applicable under the pre-amendment statutory framework.
- Section 19(1)(c) — requirement of previous sanction by the competent authority for prosecution of the relevant public servant.
- Section 20 — statutory presumption concerning acceptance of gratification, subject to foundational facts being established.
The judgment specifically records that the accused were charged under Sections 7, 12 and 13(1)(d), and also examines the requirements of Sections 19(1)(c) and 20.
The Indian Penal Code, 1860
- Section 120B — criminal conspiracy.
The charge under Section 120B IPC was not proved, and the acquittal on that count was not interfered with by the High Court.
Gujarat Panchayats Act, 1961
The Act becomes relevant to determine the authority competent to remove a Talati-cum-Mantri from office, which in turn was material for deciding the validity of sanction under Section 19(1)(c) of the Prevention of Corruption Act, 1988.
Party
Rafikmiya Ahmedmiya Malek v. State of Gujarat and Sirajbhai Rasulbhai Vora v. State of Gujarat - Criminal Appeal No.1177 of 2015 with Criminal Appeal No.1183 of 2015 - 2026 INSC 890 - decided on 19.08.2026 – Hon’ble Mr. Justice Ujjal Bhuyan and Hon’ble Mr. Justice Atul S. Chandurkar, JJ.
