1. Ingredients of Sec- 7 & Sec- 13(1) (d) read with Sec- 13(2) of PC Act, 1988
by Ronak Karanpuria1
DR. ANUP KUMAR SRIVASTAVA & Anr v. CBI
2012 (11) TMI 953 (DELHI HIGH COURT) by HON'BLE MR. JUSTICE M.L. MEHTA
The essential ingredients of Section 7 are that
(i) the person who accepts gratification should be a public servant,
(ii) he should have accepted the gratification for himself and the gratification should be as a
motive or reward for doing or forbearing to do any official act or for showing or forbearing
to show, in the exercise of his official function, favour or disfavour to any person or for
rendering or attempting to render any service or disservice to any person.
Insofar as Section 13 (1) (d) of the Act is concerned, the essential ingredients are
(i) he should be a public servant
(ii) he should have used corrupt or illegal means or otherwise abused his position as such
public servant and
(iii) he should have obtained a valuable things or pecuniary advantage for himself or for any
other person. Without any public interest
In Section 13(1) (d), the word used is ‘obtained’. The Apex Court in the case of C.K. Damodaran
Nair v Govt. of India [(1997) 9 SCC 477] had the occasion to consider the word ‘obtained’ used in
Section 5 of PC Act, 1947, which is now Section 13(1)(d) of the Act of 1988. It was held in para 12
thus: “The position will, however, be different so far as an offence under Section 5 (1)(d) read
with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the
accused `obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by
otherwise.”
C.K. Jaffer Sharief Vs. State (Through CBI) (2012) 39 SCD 721
Bench: P. SATHASIVAM AND RANJAN GOGOI, JJ.
Held:- A bare reading of the provisions of s.13(i)(d) the Prevention of Corruption Act, 1988 would
go to show that the offence contemplated therein is committed, if a public servant obtains for
himself or any other person any valuable thing or pecuniary advantage by corrupt or illegal means;
by abusing his position as public servant or without any public interest. In the instant case, the
appellant besides working as the Minister of Railways was the Head of the two PSUs in question at
the relevant time. The record indicates that the four persons while in London had performed certain
tasks to assist the Minister in the discharge of his public duties. Therefore, the appellant cannot be
construed to have adopted corrupt or illegal means or to have abused his position as a public
servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the said
four persons. As a Minister, it was for the appellant to decide on the number and identity of the
officials and supporting staff who should accompany him to London if it was anticipated that he
would be required to perform his official duties while in London. The said decision cannot be said
to be actuated by a dishonest intention to obtain an undue pecuniary advantage. That dishonest
intention is the gist of the offence u/s. 13(1)(d) is implicit in the words used i.e. corrupt or
illegal means and abuse of position as a public servant.
Soma Chakravarthy v State 2007 (5) SCC 403.
We have primarily to look at the language employed and give effect to it. One class of cases might
arise where 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
1
1st Year LL.M., NLSIU Bangalore

2. element of effort on the part of the receiver. One may accept money that is offered, or solicit
payment of a bribe, or extort the bribe by threat or coercion; in each case, he obtains a pecuniary
advantage by abusing his position as a public servant. The word “obtains” is used in Sections 161
and 165 of the Penal Code. The other words “corrupt or illegal” means find place in Section 162.
Apart from ―corrupt and illegal means, we have also the words ―or “by otherwise abusing his
position as a public servant”. If a man obtains a pecuniary advantage by the abuse of his position,
he will be guilty under subclause (d). Sections 161, 162 and 163 refer to a motive or a reward for
doing or forbearing to do something, showing favour or disfavour to any person, or for inducing
such conduct by the exercise of personal influence. It is not necessary for an offence under clause
(d) to prove all this. It is enough if by abusing his position as a public servant a man obtains for
himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or
disfavour. To a certain extent the ingredients of the two offences are common, no doubt.
Tarlochan Dev Sharma v. State of Punjab, (2001) 6 SCC 260:
―An honest though erroneous exercise of power or indecision is not an abuse of power. A
decision, action or instruction may be inconvenient or unpalatable to the person affected but it
would not be an abuse of power. It must be such an abuse of power which would render a
Councilor unworthy of holding the office of President.
Kanwarjit Singh Kakkar v. State of Punjab And Anr [2011] 6 S.C.R. 895
Bench: MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.
HELD:
In the light of the definition of ‘corruption’ defined under the Prevention of Corruption Act in its
Preamble and under Section 7 of the Act, it would clearly emerge that ‘corruption’ is acceptance
or demand of illegal gratification for doing an official act. The demand/ receipt of fee while
doing private practice by itself cannot be held to be an illegal gratification as the same obviously is
the amount charged towards professional remuneration. It would be preposterous to hold that if a
doctor charges fee for extending medical help and is doing that by way of his professional duty, the
same would amount to illegal gratification as that would be even against the plain common sense.
If however, it is
alleged that the doctor while doing private practice as Government doctor indulged in malpractice
in any manner as for instance took money by way of illegal gratification for admitting the patients
in the government hospital or any other offence of criminal nature like prescribing unnecessary
surgery for the purpose of extracting money by way of professional fee and a host of other
circumstances, the same obviously would be a clear case to be registered under the IPC as also
under the Prevention of Corruption Act which was not the case in the instant matter. The FIR
sought to be quashed, merely alleged that the appellants were indulging in private practice while
holding the post of government doctor which restrained private practice, and charged professional
fee after examining the patients. [Para 11]
Before a public servant can be booked under the Prevention of Corruption Act, the ingredients of
the offence will have to be deduced from the facts and circumstances obtained in the particular
case. Judging the case of the appellants on this anvil, the amount that was alleged to have been
accepted even as per the allegation of the complainant/informant was not by way of gratification
for doing any favour to the accused, but admittedly by way of professional fee for examining and
treating the patients. However, no presumption can be drawn that it was accepted as motive or
reward for doing or forbearing any official act so as to treat the receipt of professional fee as
gratification much less illegal gratification. Even as per the case of the complainant/ informant, the
act on the part of the appellants was contrary to the government circular and the circular itself had a
rider in it which stated that the government doctor could do private practice also, provided he
sought permission from the government in this regard. Thus, the conduct of the appellants who

3. were alleged to have indulged in private practice while holding the office of government doctor and
hence public servant at the most, could be proceeded with for departmental proceeding under the
Service Rules but in so far as making out of an offence either under the Prevention of Corruption
Act or under the IPC, would be difficult to sustain as examination of patients by doctor and thereby
charging professional fee, by itself, would not be an offence. In that event, the said act clearly
would fall within the ambit of misconduct to be dealt with under the Service Rules but would not
constitute criminal offence under the Prevention of Corruption Act. [Para 15]
State of Maharashtra v. Dnyaneshwar Laxaman Rao Wankhede (2010) 2 SCC (Cri.) 385
Bench: S.B. Sinha, Cyriac Joseph
HELD: The demand of illegal gratification is a sine qua non for constitution of an offence under
the provisions of the Prevention of Corruption Act, 1988. For arriving at the conclusion as to
whether all the ingredients of an offence - demand, acceptance and recovery of the amount of
illegal gratification have been satisfied or not, the court must take into consideration the facts
and circumstances brought on the record in their entiretay. For the said purpose, the presumptive
evidence, as is laid down in section 20 must also be taken into consideration but then in respect
thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of
proof on the prosecution would differ. Before, however, the accused is called upon to explain as to
how the amount in question was found in his possession; the foundational facts must be established
by the prosecution. Even while invoking the provisions of section 20, the court is required to
consider the explanation offered by the accused, if any, only on the touchstone of preponderance of
probability and not on the touchstone of proof beyond all reasonable doubt. [Para 16]
(C.M. Girish Babu vs CBI, Cochin, High Court of Kerala), (2009) 3 SCC 779
Bench: Lokeshwar Singh Panta, B. Sudershan Reddy
Fact: In this regard, the High Court found that there is nothing in the evidence of PW-11 -
Natarajan, official witness, to arrive at any conclusion of appellant making any demand of
gratification. PW-11 stated that from the conversation between the appellant and PW-10, he could
heard the appellant asking & ”is it ready?” and PW-10 only nodding his head. It is for that reason
the High Court recorded that the alleged demand by the appellant on 2.10.1999 is highly doubtful
and is not proved beyond reasonable doubt
Held: The Apex Court has held that
(1)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.
(2)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.
Subash Parbat Sonvane vs. State of Gujarat2, 2002 Cri.L.J. SC 2787
1. P.C. Act, 1988—Sec.13 (1)(d)
P.C. Act, 1988 — ‘accepts’ as against ‘obtains’
2. Mere acceptance of money would not be sufficient for convicting the accused under sec.
13(1)(d)(i) of P.C. Act, 1988, as sec. 7 of the Act used the words ‘accepts’ or ‘obtains’
whereas sec. 13(1)(d)(i) omitted the word ‘accepts’ and emphasized the word ‘obtains’.
3. P.C. Act, 1988 — Sec. 20
2
http://apvc.ap.nic.in/js/vol3/c1t1s545.html

4. The Supreme Court further held that the statutory presumption under sec. 20 of the
Prevention of Corruption Act, 1988 is available for the offence punishable under sec. 7 or
sec. 11 or clause (a) or clause (b) of sub-section (1) of sec. 13 and not for clause (d) of
subsection (1) of sec. 13
Held: The Supreme Court observed that mere acceptance of money without there being any other
evidence would not be sufficient for convicting the accused under sec. 13(1)(d)(i). In Secs. 7 and
13(1)(a) and (b) of the Act, the Legislature has specifically used the word ‘accepts’ or ‘obtains’. As
against this, there is departure in the language used in clause (1)(d) of sec. 13 and it has omitted the
word ‘accepts’ and has emphasized the word ‘obtains’.
Further, 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
(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 sec. 13(1)(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.
Madhukar Bhaskarrao Joshi vs State Of Maharashtra [2000 (8) SCC 571]).
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 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.
Suraj Mal Vs. State (Delhi Admn.) [(1979) 4 SCC 725],
Court took the view that mere recovery of tainted money divorced from the circumstances under
which it is paid is not sufficient to convict the accused when the substantive evidence in the case is
not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the
accused, in the absence of any evidence to prove payment of bribe or to show the accused
voluntarily accepted the money knowing it to be bribe.
Trilok Chand Jain vs State Of Delhi 1977 AIR 666, 1976 SCR (1) 348
Bench: Sarkaria, R Singh
One of the essential ingredients of the offence under s. 161, I.P.C., is that the gratification must
have been received by the accused as a motive or reward for committing an act or omission in
connection with his official functions. Even if the government servant was incapable of showing
any favor or rendering any service in connection with his official duties, he may be guilty; but, the
existence of an understanding that the bribe was given in consideration of some official act or
conduct is an important factor bearing on the question as to whether the accused had received the
gratification as a motive or reward as mentioned in s. 161, I.P.C.

5. Manual of Investigation of Economic Offences , State Crime Branch Haryana