Holding

A conviction under Section 13(1)(d) of the Prevention of Corruption Act, 1988 requires proof that the public servant actually obtained the advantage by corrupt or illegal means; mere acceptance of money without such proof is insufficient.

Summary

Subash Parbat Sonvane, a public servant, was convicted by a Special Judge in Ahmedabad under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act, 1988 for taking money from a complainant. The Gujarat High Court upheld both convictions. On appeal before the Supreme Court, the appellant contended that the prosecution had not proved that he “obtained” the money by corrupt or illegal means, a requirement under Section 13(1)(d). The Court examined the statutory language and prior decisions, holding that mere acceptance of money without evidence of demand or effort to obtain does not satisfy the element of “obtain”. It found that the evidence of the sole prosecution witness did not show any demand or that the appellant obtained the money. Consequently, the Supreme Court set aside the conviction under Section 13(1)(d) while affirming the conviction under Section 7. The appeal was partly allowed.

Issues considered

Whether the prosecution must prove that a public servant ‘obtained’ a valuable thing or pecuniary advantage by corrupt or illegal means under Section 13(1)(d) of the Prevention of Corruption Act, 1988
Whether mere acceptance of money without proof of demand or effort to obtain satisfies the element of ‘obtain’ for conviction under Section 13(1)(d)
Whether the conviction under Section 13(1)(d) can be sustained on the evidence on record in the present case

Legislation cited

Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2), s. 7

Subjects

Prevention of Corruption ActSection 13(1)(d)obtainbribepublic servantevidenceconvictionappealcriminal misconduct

Judgment

;.

... .,._ SUBASH PARBAT SONVANE
v.
A

STATE OF GUJARAT

APRIL 24, 2002

[M.B. SHAH, BISHESHWAR PRASAD SINGH AND H.K. SEMA, JJ.] B

~ Prevention of Corruption Act, 1988-Section 13(J)(d)-Criminal
~
misconduct by a public servant-Conviction-Necessary ingredients-Evidence
on record to establish that accused by corrupt or illegal means obtained for
himself or any other person any valuable thing or pecuniary advantage-On
c
facts courts below convicting accused for criminal misconduct-On appeal
held, from the evidence on record ii cannot be inferred that accused obtained
any amount by corrupt or illegal means-Mere acceptance of money thus, not
sufficient to convict the accused-Order of Courts below set aside.
D
Appellant-accused was convicted under Sections 7 13(1)(d) and 13(2)

.. . of the Prevention of Corruption Act, 1988 hy the trial court. Aggrieved,
appellant-accused filed appeal before High Court which was dismissed .

In appeal be!ore this Court appellant submitted that the order passed
by High Court confirming the conviction of the appellant under Section E
13(1)(d)(i) is illegal and erroneous since the prosecution must establish that
by corrupt and illegal means accused has obtained for himself or for any other
person any valuable thing or pecuniary advantage and also there is no
evidence on record that appellant 'obtained' any amount by corrupt or illegal
means.
_.,. ... F
Partly allowing the appeal, the Court

HELD: 1. Order of High Court convicting the appellant for the offence

.. punishable under Section 13(1 )(d)(i) of the Prevention of Corruption Act, 1988
is set aside. However, appellant's conviction under Section 7 is upheld since
in view of the evidence on record conviction cannot be assailed in any manner. G
[361-C; 364-G)

-;.. 2.1. Mere acceptance of money without there being any other evidence
would not be sufficient for convicting the accused under Section 13(l)(d)(i)
of the Act. [361-F-G)
359 H
....'

360 SUPREME COURT REPORTS [2002] 3 S.C.R.

A 2.2. In Sections 7 and 13(1)(a) and (b) of the Act the Legislature has
specifically used the words 'accepts' or 'obtains'. However in Section 13(1)(d)
it has omitted the word 'accepts' and has emphasized the word 'obtains'.
Further for convicting the person under Section 13(1) (d), there must be
evidence on record that accused 'obtained' for himself or for any other person
B any valuable thing or pecuniary advantage by either corrupt or illegal means
or by abusing his position as a public servant or he obtained for any person
any valua1ble thing or pecuniary advantage without any public interest
(362-B-D]

2.3. In the instant case, from the evidence of the prosecution witnesses
C it cannot be inferred that accused demanded any amount from the
complainant or that he had obtained the same. It is apparent that the trial
court and the High Court misread the evidence of prosecution witness and
held that there was demand by the accused and the amount was paid to him
by the co_mplainant thus it was unreasonable to hold that accused demanded
money from the complainant (364-E, F]
D
Ram Krishan and Anr. v. The State of Delhi, (1956] SCR 183; MW
Mohinddin v. State of Maharashtra, (1995) 3 SCC 567 and C.K Damodarafi?
Nair/v. Govt. of India, [1997) 9 SCC 477, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
E 546 of 2002.

From the Judgment and Order dated 31. 7.2001 of the Gujarat High
Court in Crl. A. No. 881 of 1997.

Mahendra Anand, Raj iv Mehta and Ms. Anita Pandey for the Appellant.

F S.K. Dholakia, Ms. Hemantika and Ms. Aruna Gupta for the Respondent.

The Judgment of the Court was delivered by

SHAH, J. Leave granted.

Appellant was convicted by the Special Judge, City Civil Court,
G Ahmedabad by judgment and order dated 10.9.1997 for the offence punishable
under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred
to as "the Act") and sentenced to suffer rigorous imprisonment for six months
and to pay a fine of Rs. 500, in default of payment of which to further
undergo rigorous imprisonment for 15 days. He was also convicted for the
H offence punishable under Sections 13(l)(d) and 13(2) of the Act and was
SUBASHPARBATSONVANEv. STATEOFGUJARAT[SHAH,J.] 361

.... ·{ sentenced to suffer rigorous imprisonment for one year and to pay a fine of
Rs. 500, in default to further undergo rigorous imprisonment for 15 days.
A

Against that judgment and order, appellant preferred Criminal Appeal No.
881/97 before the High Court of Gujarat at Ahmedabad. The High Court
dismissed the said appeal by passing the impugned judgment. That order is
challenged by filing this appeal.
B
At the time of admission hearing, this Court passed the following order:

~
"Considering the contentions raised by learned counsel for the
~ petitioner and the evidence on record the impugned order passed by
Special Judge and confirm~d by the High Court with regard to the
conviction of the petitioner under Section 7 of the Prevention of c
Corruption Act cannot be assailed in any manner. Hence, with regard
to that part of the judgment this petition is dismissed. However, with
regard to the conviction of the petitioner under Section 13(1)(d) issue
notice returnable on 9th January, 2002."

Thereafter, the matter was directed to be placed on a non-miscellaneous D
day for final hearing .

~
• The learned senior counsel Mr. Anand appearing on behalf of appellant
submitted that the judgment and order passed by the High Court confirming
the conviction of the appellant under Section 13(1)(d)(i) of the Act is on the
face of it illegal and erroneous. He submitted that for convicting the appellant
E
for the offence under Section 13(l)(d), the prosecution must establish that by
corrupt and illegal means accused has obtained for himself or for any other
person any valuable thing or pecuniary advantage. He submitted that in the
present case, there is no evidence on record that appellant 'obtained' any
--.; -I, amount by corrupt or illegal means. F
In our view, mere acceptance of money without there being any other
evidence would not be sufficient for convicting the accused under Section
13(1)(d)(i). Section 13(1)(d) is as under:
•
"13. Criminal misconduct by a public servant. (I) A public servant G
is said to commit the offence of criminal misconduct,

- ._ (d) if he,

(i) by corrupt or illegal means, obtains for himself or for any other
person any valuable thing or pecuniary advantage; or H
362 SUPREME COURT REPORTS [2002] 3 S.C.R.

A (ii) by abusing his position as a public servant, obtains for himself or
for any other person any valuable thing or pecuniary advantage;
or
(iii) wh~le holding office as a public servant, obtains for any person
any valuable thing or pecuniary advantage without any public
B interest."

In Sections 7 and 13(l)(a) and (b) of the Act, the Legislature has
specifically used the words 'accepts' or 'obtains'. As against this, there is '>'
departure in the language used in clause (l)(d) of Section 13 and it has ~

omitted the word 'accepts' and has emphasized the word 'obtains'. Further,
c the ingredient of sub-clause (i) is that by corrupt or illegal means, a public
servant obtains any valuable thing or pecuniary advantage; under clause (ii),
he obtains such thing by abusing his position as public servant; and sub-
clause (iii) contemplates that while holding office as the public servant, he
obtains for any person any valuable thing or pecuniary advantage without
any public interest. Therefore, for convicting the person under Section 13(l)(d),
D there must be evidence on record that accused 'obtained' for himself or for
any other person any valuable thing or pecuniary advantage by either corrupt
or illegal means or by abusing his position as a public servant or he obtained
for any person any valuable thing or pecuniary advantage without any public
interest.
.#-

-
E
This Court interpreted similar provisions under the Prevention of
Corruption Act, 1947 in Ram Krishan and Anr. v. The State of Delhi, [1956]
SCR 183. In the said case, the Court dealt with similar clause (d) of sub-
- section 1 of Section 5 and held that there must be proof that the public
servant adopted corrupt or illegal means and thereby obtained for himself or
F for any other person any valuable thing or pecuniary advantage. The Court >- i..,_.
observed

" ....... .In one sense, this is no doubt true but it does not follow
that there is no overlapping of offences. We have primarily to look
at the language employed and give effect to it. One class of cases
G might arise when corrupt or illegal means are adopted or pursued by
the public servant to gain for himself a pecuniary advantage. The
word "obtains'', on which much stress was laid does not eliminate the
idea of acceptance of what is given or offered to be given, though it
connotes also an element of effort on the part of the receiver. One
H may accept money that is offered, or solicit payment of a bribe, or
•

SUBASHPARBATSONVANEv. STATEOFGUJARAT[SHAH, !.] 363

extort the bribe by threat or coercion; in each case, he obtains a A
pecuniary advantage by abusing his position as a public servant"

The Court further observed that

" ....... .It is enough if by abusing his position as a public servant a man
obtains for himself any pecuniary advantage, entirely irrespective of B
motive or reward for showing favour or disfavour"

Similarly, in MW. Mohiuddin v. State of Maharashtra, [1995] 3 SCC
567] the Court dealt with Section 13(\)(d)(i) and (ii) and after referring to the
decision quoted above as well as dictionary meaning of word "obtains"
observed whether there was an acceptance of what is given as a bribe and C
whether there was an effort on the part of the receiver to obtain the pecuniary
advantage by way of acceptance of the bribe depends on the facts and
circumstances of each case. In that case, the Court held that it was proved
that accused made a demand and also got the affirmation from the complainant
that he had brought the demanded money and at his instance, the complainant D
wrapped the money in the handkerchief given by the accused and placed the
same on the bag which was brought by the accused and as asked by him;
these steps have been taken into consideration in arriving at the conclusion
that the accused had in fact "obtained" the pecuniary advantage, namely, that
he received the illegal gratification. Therefore, the Court upheld the conviction
under Section J3(J)(d). Lastly, in C.K. Damodaran Nair v. Govt. of India, E
[1997] 9 SCC 477, this Court considered the word "obtain" used in Section
5(I)(d) and held as under

"12. The position will, however, be different so far as an offence
...( under Section 5(\)(d) read with Section 5(2) of the Act is concerned .
For such an offence, prosecution has to prove that the accused F
"obtained" the valuable thing or pecuniary advantage by corrupt or
illegal means or by otherwise abusing his position as a public servant
and that too without the aid of the statutory presumption under Section
4(1) of the Act as it is available only in respect of offences under
Section 5(l)(a) and (b)and not under Section 5(l)(c), (d) or (e) of the G
Act. "Obtain" means to secure or gain (something) as the result of
request or effort (Shorter Oxford Dictionary). In case of obtainment

-~ the initiative vests in the person who receives and in that context a
demand or request from him will be a primary requisite for an offence
under Section 5(l)(d) of the Act unlike an offence under Section 161
!PC, which, as noticed above, can be, established by proof of either H
..
364 SUPREME COURT REPORTS [2002) 3 S.C.R.

A "acceptance" or "obtainment".

Same is the position of statutory presumption under Section 20 of the
Act and is available for the offence punishable under Section 7 or Section 11
or Clause (a) or clause (b) of sub-section (1) of Section 13 and not for clause
(d) of sub-section (1) of Section 13. -
B
In the background of aforesaid settled legal position, we would now
refer to the relevant part of the evidence. Before the trial court, it was submitted
by the learned APP that complainant has not supported the prosecution case
on main ingredients of demand and acceptance and was treated hostile. In
cross-examination also, he has not supported the prosecution version on
C demand or acceptance of the amount. The trial court has also observed that
the compiainant deliberately does not support on the points of demand and
acceptance. However, the Court relied upon the evidence of Panch Shailesh
Devshankar Pandya (PW2). We wer~ taken through the evidence of PW2
Pandya and from his evidence, it is difficult to find out any statement made
D by him that accused demanded any amount from the complainant. The relevant
part of the evidence of this witness suggests that when the prosecution party
went at the police chowki, accused asked the complainant as to why he had
come there at that time? To that, complainant replied that he was waiting
since one O'cio·ck and that he has brought one witness to be examined.
Accused informed him to come in the evening as his writer was not present.
E When the accused started to go towards toilet, the complainant followed him
and he gave something from his pocket to the accused who took the same
and put that in his pocket. From this evidence, it cannot be inferred that
accused demanded any amount from the complainant or that he had obtaine.d
the same. It is apparent that the trial court and the High Court misread the
F evidence of PW2 and held that there was demand by the accused and the
amount was paid to him by the complainant. It was unreasonable to hold that
accused demanded money from the complainant. Complainant denied the
said story and PW2 had not stated so.

In this view of the matter, this appeal is partly allowed. Impugned
G judgment and order passed by the High Court confirming the order passed by
the Special Judge, City Civil Court, Ahmedabad convicting the appellant for
the offence punishable under Section 13(l)(d)(i) is set aside and the appellant
is acquitted for the same.

N.J. Appeal partly allowed.