8. It is well-settled that to establish the offence under Sections 7 and 13(1)(d) of the Act, particularly those relating to the trap cases, the prosecution has to establish the existence of demand as well as acceptance by the public servant. InB. Jayaraj v. State of A.P.,(2014) 13 SCC 55, it was held as under:-
“7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. (2010) 15 SCC 1 and C.M. Girish Babu v. CBI (2009) 3 SCC 779.”
xxx
REBUTTABLE PRESUMPTION: 11. So far as the presumption raised under Section 20 of the Act for the offence under Section 7 of the Act is concerned, it is settled law that the presumption raised under Section 20 of the Act is a rebuttable presumption, and that the burden placed on the appellant for rebutting the presumption is one of preponderance of probabilities. In C.M. Girish Babu v. C.B.I. Cochin, High Court of Kerala (2009) 3 SCC 779, this Court held as under:-
“21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accuse charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence…….
22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt…”
Since it is established that the accused was possessing the bribe money, it was for them to explain that how the bribe money has been received by them and if he fails to offer any satisfactory explanation, it will be presumed that he has accepted the bribe.
ACCUSED MUST OFFER EXPLANATION TO REBUT THE PRESUMPTION: 12. In the case in hand, the accused have not offered any explanation to rebut the presumption under Section 20 of the Act. On the other hand, from the evidence of PW-1 that accused No.1 demanded the bribe appears to be natural. The application for approval of revised plan was earlier rejected. When the complainant and his advocate met TDO and on whose direction PW-1 has paid the requisite fine amount, the file has to necessarily move. It was at that point of time accused No.1 demanded bribe amount from PW-1.While appreciating the evidence, the High Court should have given proper weight to the views of the trial court as to the credibility of all evidence of PWs 1 and 3. When the findings recorded by the trial court is based upon appreciation of evidence, the High Court was not right in reversing the judgment of the trial court.
Sentence reduced.
PARTY: THE STATE OF GUJARAT v NAVINBHAI CHANDRAKANT JOSHI ETC – Criminal Appeal Nos. 895-896 of 2018 – JULY 17, 2018 – [2018] 9 S.C.R. 329.
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