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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     97     OF     2012   

NARENDRA CHAMPAKLAL TRIVEDI         …..Appellant

Versus

STATE OF GUJARAT      ….Respondent

WITH

CRIMINAL     APPEAL     NO.     98     OF     2012   

HARJIBHAI DEVJIBHAI CHAUHAN  … Appellant

Versus

STATE OF GUJARAT           ….Respondent

J     U     D     G     M     E     N     T   

Dipak     Misra,     J.   

The present appeals are directed against the judgment of  

conviction and order of sentence dated 14.10.2011 passed by  

the learned Single Judge of the High Court of Gujarat at  

Ahmedabad     in Criminal Appeal No. 31 of 1999 whereby the  

appellate court      has confirmed the judgment and order of  

conviction and       sentence dated 1st of December, 1998

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passed by the learned Additional Special Judge, Bhavnagar in  

Special Case No. 6 of   1994, wherein the learned Additional  

Special Judge had convicted the appellants for the offence  

punishable under Section 7 of the Prevention of Corruption  

Act, 1988 (for brevity `the Act’) and sentenced them to  

undergo rigorous imprisonment of six months with fine of  

Rs.5,000/- each, in default of payment of fine, to suffer  

simple imprisonment for a period of one month and further  

convicted them under Section 13(2) of the Act and sentenced  

them to undergo rigorous imprisonment for a period of one  

year with a fine of Rs.5,000/- each, in default, to suffer  

simple imprisonment for a period of one month with the  

stipulation that both the sentences would be concurrent.

2. The broad essential facts of the prosecution case are that  

the complainant, Gajendra Jagatsinh Jadeja, was residing in  

Plot No. 1 in Virbhadranagar Society.  As in the City Survey  

Office record, the name of his grandfather stood recorded in  

respect of the premises in question, the complainant in order  

to obtain the property card and the sketch of the same,  went  

to the office of the City Survey Office, Bhavnagar on 11th  

March, 1994, to submit an application for the aforesaid

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purpose and he was asked by Mr. Jagani, Clerk in the said  

office to come on 15th of March, 1994.  On the said date, the  

complainant at about 1.30 p.m. went to the City Survey Office  

and gave the application to Mr. Jagani, who asked him to  

hand over the application to Narendra Champaklal Trivedi, the  

appellant in Criminal Appeal No. 97 of 2012, sitting in the  

opposite room who told him that it would take a week’s time to  

prepare the said copies.  The complainant made a request to  

Shri Jagani to expedite the matter as he had to go to meet his  

father with the copies and Mr. Jagani replied that it would  

cost him Rs.50/- to get the copies immediately.  As the  

complainant had no money at that time he was asked by  

Jagani to meet Trivedi and Harjibhai Devjibhai Chauhan, the  

appellant in Criminal Appeal No. 98/2012 who told him that  

the copies would be given to him on payment and he could  

receive the copies between 4.30 to 4.50 p.m.  As the appellant  

had no intention to make the payment, he approached the  

office of the Anti Corruption Bureau which was situate on the  

ground floor of his premises and gave a complaint to the Police  

Inspector.  The concerned inspector sought assistance of two  

panch witnesses who were made to understand the case and

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thereafter experiment of U.V. Lamp was carried out with the  

help of anthrecene powder.  Thereafter, the complainant  

produced the currency notes and necessary instructions were  

given to the complainant as well as to the witnesses.  A  

preliminary part of the panchnama was drawn and signatures  

of the panchas were taken and thereafter, the complainant,  

the panchas and the members of the raiding party proceeded  

to the City Survey Office.

3. As the narration of the prosecution case proceeds, Jagani  

asked the complainant to meet said Chauhan and pay the  

money.  Being instructed, they went to the room of said  

Chauhan and he was directed to pay Rs. 7.10 paise as fees to  

said Trivedi and obtain the property card and sketch.  

Thereafter, said Chauhan demanded money from the  

complaint as decided and on being asked whom to hand over  

the amount, Chauhan said to give it to Trivedi and Trivedi was  

asked to accept the amount.  Thereafter, the complainant took  

out the money from his left pocket of the shirt and handed  

over to Trivedi which was accepted by Trivedi by his right  

hand.  He counted the money by both hands and put the same  

in the left side pocket of his shirt.  As pre-decided, the signal

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was given to the raiding party which rushed to the place of the  

incident.  Thereafter, the experiment of U.V. Lamp was carried  

out on the fingers of both the hands and palms of Trivedi and  

pocket also and thereon light blue fluorescent marks were  

found.  Panch witness No. 1 took out the currency notes from  

Trivedi.  There were two ten rupee notes and one five rupee  

note.  On those currency notes, light blue fluorescent marks  

were found with the numbers mentioned on the first part of  

the panchnama.  On being asked about the rest of the money,  

Trivedi had said that he had given it to Chauhan.  Experiment  

of U.V. Lamp was made on the hands and pockets of Trivedi  

and Chauhan and light blue fluorescent marks of anthrecene  

powder was found.  The currency notes were tallied with the  

numbers mentioned on the first part of the panchnama.  From  

both the accused-appellants, currency notes were recovered,  

marks of anthrecene powder were found and the second part  

of the panchnama was prepared.  The Investigating Officer  

carried out further investigation, recorded the panchnama and  

after obtaining requisite sanction, he laid the chargesheet  

before the Competent Court on 25th of August 1994.

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4. The learned trial Judge framed charges in respect of the  

offences that have been mentioned hereinbefore.  The  

appellants pleaded not guilty and sought to be tried.

5. In order to bring home the charges levelled against the  

appellants, the prosecution examined number of witnesses  

and produced documentary evidence in support of the case.   

6. The accused-appellants in their statements under  

Section 313 of the Code of Criminal Procedure disputed the  

charges that they had demanded the amount towards illegal  

gratification but did not want to adduce any evidence in their  

defence.

7. The learned trial Judge, appreciating the oral as well as  

the documentary evidence and taking into consideration the  

submissions advanced by the parties, found the appellants  

guilty and convicted them as has been stated hereinabove.

8. The appellants preferred a singular appeal before the  

High Court.  It was contended before the High Court that the  

learned trial Judge had failed to take into consideration the  

plea of the defence and the inadequacy of the material brought  

on record from which it would be graphically clear that the

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prosecution had miserably failed to prove its case that there  

was demand of bribe and acceptance thereof and hence, the  

ingredients of Sections 7 and 13 of the Act had not been  

established.  It was argued that  neither the FIR nor the  

testimony of the complainant remotely establish that there  

was a demand for bribe and once the said core fact was not  

proven, the charges levelled against them were bound to  

collapse like a pack of cards.  It was urged that as the office of  

the Anti Corruption Bureau had been leased out by the  

complainant, he was able to rope the accused-appellants in a  

bogus trap and falsely implicate them.  It was further  

contended that the complainant and Panch witness No. 1 had  

stated in the cross-examination that Trivedi had not made any  

demand of Rs.50/- from the complainant and the recovery of  

the trapped amount had also not been proven inasmuch as  

the panchas are not independent witnesses and their evidence  

did not merit any acceptance.  It was proponed that the  

learned trial Judge had failed to consider the fact that Jagani  

who was the main culprit was not booked under law and,  

therefore, the prosecution had deliberately severed the link to  

rope in the appellants and hence, it was a malafide

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prosecution.  It was also submitted that there were other  

witnesses in the room but the prosecution chose to examine  

only the interested witnesses and in essence, the judgment of  

conviction suffered from perversity of approach and deserved  

to be axed.          

9. The learned counsel for the State urged before the High  

Court that the emphasis laid on Jagani not being arrayed as  

an accused was totally inconsequential as he had never made  

any demand from the complainant.  He referred to various  

documents on record and the testimony of the witnesses that  

the charges levelled against the accused persons had been  

proven to the hilt and there was nothing on record which  

would remotely suggest that they had been falsely implicated.  

The relationship between the complainant and the ACB officer  

could not be taken into consideration to come to a conclusion  

that the complaint was false, malafide and the accused  

persons had been deliberately roped in.  It was canvassed by  

him that the amount had been recovered from the pocket of  

Trivedi and the demand had been made by the accused  

Chauhan to handover the amount of illegal gratification to  

Trivedi.  The offence was committed with the consent of both

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and the same had been established by the oral and  

documentary evidence.  The learned counsel for the State gave  

immense emphasis on the version of the Panch witnesses, the  

scientific proof and the testimony of the trapping officer.  The  

principle of presumption was pressed into service and the said  

contention was edificed by putting forth the stance that the  

cumulative effect of the evidence on record clearly satisfied the  

ingredients of Sections 7 and 13(2) read with Section 13(1)(d)  

of the Act to bring home the charges levelled against the  

accused persons.

10. The learned single Judge took note of the facts as regards  

the presence of the accused appellants in the room, the  

demand made by the appellant No. 2, Chauhan, in the  

presence of the Panch witness No. 1, the direction by Chauhan  

to hand it over to Trivedi which established the consent, the  

deposition of PW-2 about the involvement and complicity of  

the appellants in the crime, the absence of enmity between the  

complainant and the accused persons, the unreproachable  

aspect of the evidence of the witnesses who stood embedded in  

their stand, the acceptance and recovery that inspired total  

credence about the demand and acceptance, and the principle

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of presumption being attracted, all of which would go a long  

way to show that the prosecution had proven the case beyond  

reasonable doubt and further considered the inability of the  

accused-appellants to rebut the presumption as envisaged  

under Section 20 of the Act, the unacceptability and  

farfetchedness of the theory of existence of obligation between  

the informant and the investigating officer to implicate the  

accused-appellants in the crime, the failure of the appellants  

to explain how the amount in question was found from their  

possession and how anthrecene powder was found on their  

hands and eventually opined that the cumulative aspect of all  

the facts and circumstances clearly establish the charges  

framed against the appellants.  Being of this view, the High  

Court affirmed the judgment of conviction.

11. We have heard the learned counsel of both the parties at  

length and carefully perused the record.

12. At the outset, we may state that the recovery part has  

gone totally unchallenged.  Though a feeble attempt was made  

before the High Court and also before us, yet a perusal of the  

evidence and the test carried out go a long way to show that

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the amount was recovered from the possession of the accused-

appellants.  It is the settled principle of law that mere recovery  

of the tainted money is not sufficient to record a conviction  

unless there is evidence that bribe had been demanded or  

money was paid voluntarily as a bribe.  Thus, the only issue  

that remains to be addressed is whether there was demand of  

bribe and acceptance of the same.  Be it noted, in the absence  

of any evidence of demand and acceptance of the amount as  

illegal gratification, recovery would not alone be a ground to  

convict the accused.  This has been so stated in T.  

Subramanian v. The State of Tamil Nadu1.   

13. The demand and acceptance of the amount as illegal  

gratification is the sine qua non for constituting an offence  

under the Act.  It is also settled in law that there is a statutory  

presumption under Section 20 of the Act which can be  

dislodged by the accused by bringing on record some evidence,  

either direct or circumstantial, that money was accepted other  

than the motive or reward as stipulated under Section 7 of the  

Act.  It is obligatory on the part of the court to consider the  

explanation offered by the accused under Section 20 of the Act  

1 AIR 2006 SC 836

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and the consideration of the explanation has to be on the anvil  

of preponderance of probability.  It is not to be proven beyond  

all reasonable doubt.  It is necessary to state here that the  

prosecution is bound to establish that there was an illegal  

offer of bribe and acceptance thereof.  The same has to be  

founded on facts.  In this context, we may refer with profit to  

the decision in M. Narsinga  Rao v. State of A.P.2 wherein a  

three-Judge Bench referred to Section 20 of the Act and stated  

that the only condition for drawing the legal presumption  

under Section 20 is that during trial it should be proved that  

the accused has accepted or agreed to accept any gratification.  

The section does not say that the said condition should be  

satisfied through direct evidence.  Its only requirement is that  

it must be proved that the accused has accepted or agreed to  

accept the gratification.  Thereafter, the Bench produced a  

passage from Madhukar Bhaskarrao Joshi v. State of  

Maharashtra3 with approval.  It reads as follows: -

“The premise to be established on the facts for drawing  the presumption is that there was payment or acceptance of  gratification.  Once the said premise is established the  inference to be drawn is that the said gratification was  accepted ‘as motive or reward’  for doing or forbearing to do  

2 (2001) 1 SCC 691 3 (2000) 8 SCC 571

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any official act.  So the word ‘gratification’  need not be  stretched to mean reward because reward is the outcome of  the presumption which the court has to draw on the factual  premise that there was payment of gratification.  This will  again be fortified by looking at the collocation of two  expressions adjacent to each other like ‘gratification or any  valuable thing’.  If acceptance of any valuable thing can help  to draw the presumption that it was accepted as motive or  reward for doing or forbearing to do an official act, the word  ‘gratification’  must be treated in the context to mean any  payment for giving satisfaction to the public servant who  received it.”

14. In Raj Rajendra Singh Seth v. State of Jharkhand &  

Anr.4 the principle laid down in Madhukar Bhaskarrao  

Joshi (supra) was reiterated.

15. In State of Maharashtra v. Dnyaneshwar Laxman  

Rao Wankhede5, it has been held that to arrive at the  

conclusion that there had been a demand of illegal  

gratification, it is the duty of the court to take into  

consideration the facts and circumstances brought on record  

in their entirety and for the said purpose, undisputedly, the  

presumptive evidence as laid down in Section 20 of the Act  

must also be taken into consideration.

16. In C.M. Girish Babu v. C.B.I., Cochin, High Court of  

Kerala6, after referring to the decisions in M.Narsinga Rao  

4 AIR 2008 SC 3217 5 (2009) 15 SCC 200 6 AIR 2009 SC 2022

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(supra) and Madhukar Bhaskarrao Joshi (supra), this Court  

has held thus: -

“19. It is well settled that the presumption to be drawn under  Section 20 is not an inviolable one.  The accused charged with  the offence could rebut it either through the cross- examination of the witnesses cited against him or by adducing  reliable evidence.  If the accused fails to disprove the  presumption the same would stick and then it can be held by  the Court that the prosecution has proved that the accused  received the amount towards gratification.”

17. In the case at hand, the money was recovered from the  

pockets of the accused-appellants.  A presumption under  

Section 20 of the Act becomes obligatory.  It is a presumption  

of law and casts an obligation on the court to apply it in every  

case brought under Section 7 of the Act.  The said  

presumption is a rebuttable one.  In the present case, the  

explanation offered by the accused-appellants has not been  

accepted and rightly so.  There is no evidence on the base of  

which it can be said that the presumption has been rebutted.

18. The learned counsel for the appellant has submitted with  

immense force that admittedly there has been no demand or  

acceptance.  To bolster the said aspect, he has drawn  

inspiration from the statement of the complainant in  

examination-in-chief.  The said statement, in our considered

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opinion, is not to be read out of context.  He has clarified as  

regards the demand and acceptance at various places in his  

examination and the cross-examination.  The shadow witness  

has clearly stated that there was demand of bribe and giving of  

the same.  Nothing has been brought on record to doubt the  

presence of the shadow witness.  He had given the signal after  

which the trapping party arrived at the scene and did the  

needful.  All the witnesses have supported the case of the  

prosecution.  The currency notes were recovered from the  

possession of the appellants.  In the lengthy cross-

examination nothing has really been elicited to doubt their  

presence and veracity of the testimony.  The appellants in  

their statement under Section 313 of the Code of Criminal  

Procedure have made an adroit effort to explain their stand  

but we have no hesitation in stating that they miserably failed  

to dislodge the presumption.  PW-2 has categorically stated  

that the complainant took out Rs.50/- from his pocket and  

gave it to the accused appellant as directed.  Thus analysed  

and understood, there remains no shadow of doubt that the  

accused-appellants had demanded the bribe and accepted the  

same to provide the survey report.  Therefore, the conviction

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recorded by the learned trial Judge which has been affirmed  

by the learned single Judge of the High Court, does not  

warrant any interference.

19. The learned counsel for the appellants had, in the course  

of arguing the appeal, submitted that the appellants have  

suffered enough as they have lost their jobs and the amount is  

petty, the said aspects should be considered as mitigating  

factors for reduction of the sentence.  Sympathy has also been  

sought to be drawn on the foundation that the occurrence had  

taken place almost 18 years back and the amount is paltry.  

On a perusal of Section 7(1) of the Act, it is perceptible that  

when an offence is proved under the said section, the public  

servant shall be punished with imprisonment which shall not  

be less than six months but which may extend to five years  

and shall also be liable to fine.  Section 13(2) of the Act  

postulates that any public servant who commits criminal  

misconduct shall be punishable with imprisonment for a term  

which shall not be less than one year but which may extend to  

seven years and shall also be liable to fine.  As is  

demonstrable from the impugned judgment, the learned trial

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court has imposed the minimum sentence and the High Court  

has affirmed the same.

20. The submission of the learned counsel for the appellants,  

if we correctly understand, in essence, is that power under  

Article 142 of the Constitution should be invoked.  In this  

context, we may refer with profit to the decision of this Court  

in Vishweshwaraiah Iron and Steel Ltd. V. Abdul Gani  

and Ors.7 wherein it has been held that the constitutional  

powers under Article 142 of the Constitution cannot, in any  

way, be controlled by any statutory provision but at the same  

time, these powers are not meant to be exercised when their  

exercise may come directly in conflict with what has been  

expressly provided for in any statute dealing expressly with  

the subject.  It was also made clear in the said decision that  

this Court cannot altogether ignore the substantive provisions  

of a statute.

21. In Keshabhai Malabhai Vankar v. State of Gujarat8,  

it has been held as follows: -

“6. It is next contended that this Court in exercise of power  under Article 142 of the Constitution has plenary power to  7 AIR 1998 SC 1895 8 1995 Supp (3) SCC 704

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reduce the sentence.  We are afraid that we cannot ignore the  statutory object and reduce the minimum sentence prescribed  under the Act.  Undoubtedly under Article 142 the Supreme  Court has the power untrammelled by any statutory limits but  when penal offences have been prescribed for violation of  statutory regulations for production, equitable supply and  distribution of essential commodities at fair prices, it was done  in the social interest which this Court would keep in mind  while exercising power under Article 142 and respect the  legislative policy to impose minimum sentence.  Amendment to  the Act was made to stamp out the statutory violations with  impunity.  Thus we find that it is not a fit case warranting  interference.  The appeal is accordingly dismissed.”

22. In Laxmidas Morarji (Dead) by LRS. v. Behrose Darab  

Madan9, it has been ruled thus: -

“Article 142 being in the nature of a residuary power based on  equitable principles, the Courts have thought it advisable to  leave the powers under the article undefined.  The power  under Article 142 of the Constitution is a constitutional power  and hence, not restricted by statutory enactments.  Though  the Supreme Court would not pass any order under Article  142 of the Constitution which would amount to supplanting  substantive law applicable or ignoring express statutory  provisions dealing with the subject, at the same time these  constitutional powers cannot in any way, be controlled by any  statutory provisions.  However, it is to be made clear that this  power cannot be used to supplant the law applicable to the  case.  This means that acting under Article 142, the Supreme  Court cannot pass an order or grant relief which is totally  inconsistent or goes against the substantive or statutory  enactments pertaining to the case.”

23. In view of the aforesaid pronouncement of law, where the  

minimum sentence is provided, we think it would not be at all  

appropriate to exercise jurisdiction under Article 142 of the  

9 (2009) 10 SCC 425

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Constitution of India to reduce the sentence on the ground of  

the so-called mitigating factors as that would tantamount to  

supplanting statutory mandate and further it would amount to  

ignoring the substantive statutory provision that prescribes  

minimum sentence for a criminal act relating to demand and  

acceptance of bribe.  The amount may be small but to curb  

and repress this kind of proclivity the legislature has  

prescribed the minimum sentence.  It should be paramountly  

borne in mind that corruption at any level does not deserve  

either sympathy or leniency.  In fact, reduction of the sentence  

would be adding a premium.   The law does not so  

countenance and, rightly so, because corruption corrodes the  

spine of a nation and in the ultimate eventuality makes the  

economy sterile.  

24. The appeals, being sans substratum, stand dismissed.

............................................J.  [Dr. B. S. Chauhan]

............................................J.  [Dipak Misra]

New Delhi; May 29, 2012