JUDGMENT : 1. These criminal appeals have been filed under Section 27 of the Prevention of Corruption Act, 1988 read with Section 374(2) Cr.P.C. against the judgment and order dated 21.7.2014 passed by the learned Special Judge, Anti-Corruption, West, Uttar Pradesh, Lucknow in Criminal Case No.01 of 2011 (CBI Vs. Udai Pratap Bhartiya and three others) under Section 120-B IPC read with Section 13(1)(d) and 13(2) of Prevention of Corruption Act, arising out of Crime No.RC0062000A0017/2000, Police Station CBI/ACB, Lucknow, whereby the appellants have been convicted for offence under Section 120-B IPC read with Section 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 and sentenced them four years rigorous imprisonment with fine of Rs.40,000/-each and in default of payment of fine, further one year additional rigorous imprisonment. 2. The prosecution case, in brief, is that a secret information was received that custom officials and the bank officials posted at Amausi Airport were indulging in corruption practices and were demanding and accepting the bribe from the passengers coming from abroad. On this information, Sri Jayant Kashmiri, Inspector, CBI, Lucknow on 23.10.2000 constituted a team including the CBI officials and two independent witnesses, Sri Arun Srivastava, Law Officer, Circle Office, Canara Bank and R.C. Srivastava, Manager Overseas Banking, Main Branch, State Bank of India, Lucknow. The team reached to the Amausi Airport at 0040 hours on 23.10.2000. After sometime, Flight No.IAIC 884 reached Amausi Airport, Lucknow from Sharjah. The CBI officials reached inside the Airport and started keeping eye on the custom officials at custom gate and the bank officials working at the foreign exchange counter of the Allahabad Bank. The team members noticed that the custom officials and the bank officials were allowing the passengers to go out of the gate after taking money from them. The team members reached to the custom counters and the bank counters and, on search from Sri U.P. Bhartiya, Superintendent, Air Custom 3205 Dirham and Rs.12,770/-in cash, from appellant-Sunil Kumar, who was employed as Sepoy, 230 Dirham and Rs.80/-, from appellant-Rajkumar, Sepoy, 2000 Riyal, 175 Dirham and Rs.3,050/-, from appellant-S.S. Pandey, Driver, 15 Dirham and Rs.2,790/-, from Ashutosh Mishra, Manager-cum-In-charge, Allahabad Bank, Custom Counter, Amausi Airport 18390 Dirham, 360 U.S. Dollar and Rs.11,310/- were recovered. A seizure memo was prepared. 3. The appellants and the Manager-cum-In-charge, Allahabad Bank, Custom Counter could not give any explanation for having foreign currency and cash in their possession. A seizure memo was prepared. 3. The appellants and the Manager-cum-In-charge, Allahabad Bank, Custom Counter could not give any explanation for having foreign currency and cash in their possession. The CBI, thereafter, registered a case on 23.10.2000 itself as RC 17(A)/2000/CBI. 4. It was noticed that in the said flight IAIC 884, there were 113 passengers and out of them, statements of 17 passengers were taken and five passengers specifically stated that the custom officials had demanded money from them. Independent witnesses, R.C. Srivastava and Arun Srivastava were examined in the Court, who proved the surprise inspection and the seizure memo. The CBI after completing the investigation, filed charge sheet and on 4.2.2013 charges were framed. 4. Since U.P. Bhartiya, appellant had died during the pendency of the appeal, his appeal being Criminal Appeal No.947 of 2014 got abated and a separate order in this respect has been passed. 5. The CBI to prove its case examined as many as 15 witnesses including the two passengers, who came from Flight No.IAIC 884. Chhoteylal (P.W.-8) and Mohd. Ubaid (P.W.-9). Several documentary and material evidence were produced in support of the prosecution case. On behalf of the defence, seven witnesses were examined. 6. Appellants could not deny the possession of foreign currency and cash in their possession. They also could not offer any explanation for possession of the foreign currency. Independent witnesses, R.K. Srivastava (P.W.-3) and Ramesh Chandra Srivastava (P.W.-4) have proved the foreign currency and the Indian currency recovered from the appellants. Two passengers Chhoteylal (P.W.-8) and Mohd. Ubaid (P.W.-9) have specifically stated that the custom officials posted at the custom gate had demanded money for their exit from the gate. 7. The trial court has extracted the evidences of all the witnesses and for the sake of brevity, the same is not being reproduced herein. The trial court after considering the entire facts and the material evidence available on record, has convicted and sentenced the appellants as mentioned above. 8. 7. The trial court has extracted the evidences of all the witnesses and for the sake of brevity, the same is not being reproduced herein. The trial court after considering the entire facts and the material evidence available on record, has convicted and sentenced the appellants as mentioned above. 8. Sri Nandit Srivastava, learned Senior Counsel assisted by Sri Pranshu Agarwal and Sri Shiv Shankar Singh, learned counsel for the appellants submits that the prosecution has failed to prove that there was a demand of money by the appellants from the passengers and in absence of proof of a demand or request of a valuable thing or pecuniary advantage, offence under Section 13(1)(d) of Prevention of Corruption Act cannot be held to be established. He further submits that the chain does not get completed as there was no demand and no one had seen accepting money by the appellants and, only on the basis of the recovery made, they have been prosecuted and the learned trial court has held them guilty for offences under Section 120-B IPC read with Section 13(1)(d) and 13(2) of Prevention of Corruption Act. He, therefore, submits that the learned trial court has erred in law in not appreciating that unless and until the demand, acceptance and recovery are proved, the appellants could not have been held guilty. 9. On the other hand, Sri Shiv P. Shukla, learned counsel for the CBI submits that from the evidence of Chhoteylal (P.W.-8) and Mohd. Ubaid (P.W.-9), it is amply clear that the appellants and the deceased U.P. Bhartiya had demanded money in discharge of their official function from the passengers for allowing them to cross the custom gate and only after receiving the money, they would allow the passengers to cross the custom gate. He further submits that the appellants not only demanded money, but also accepted the pecuniary advantage for themselves and there has been recovery from them, which they have not denied. He also submits that all the four appellants used to demand money from the passengers coming from abroad and, thereafter, they were dividing the money collected among themselves in proportion. 10. He also submits that all the four appellants used to demand money from the passengers coming from abroad and, thereafter, they were dividing the money collected among themselves in proportion. 10. Learned counsel for the CBI further submits that the offence under Section 120-B IPC read with Section 13(1)(d) and 13(2) of Prevention of Corruption Act got proved beyond reasonable doubt by leading cogent and credible evidence by the CBI and the impugned judgment and order, which is a well reasoned order in detail, has been passed after considering the evidence on record, which is not likely to be interfered with. 11. I have considered the submissions advanced on behalf of the learned counsel for the parties and perused the record. 12. Two passengers, Chhoteylal (P.W.-8) and Mohd. Ubaid (P.W.-9), from whom money was demanded, have categorically deposed that the custom officials posted on duty, demanded money from them and they would allow the passengers to cross the custom gate only after accepting the money from them. These two witnesses were also allowed to cross custom gate only they paid the money demanded by the appellants. 13. Section 13(1)(d) and 13(2) of Prevention of Corruption Act would read as under:- “13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of criminal misconduct,— (a) ….. (b) …... (c) …... (d) if he,— (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (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) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e) ….. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.” 14. The essential ingredients of Section 13(1)(d) of the Prevention of Corruption Act are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 15. 15. The Supreme Court in the case of C.K. Damodaran Nair Vs. Govt. of India, (1997) 9 SCC 477 had occasion to consider the word “obtain” used in Section 5(1)(a) of Prevention of Corruption Act, 1947, which is para materia of Section 13(1)(d) of Prevention of Corruption Act, 1988 and, in paragraph 12 of the said judgement, it has been held as under:- “12. 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 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(1)(a) and (b) — and not under Section 5(1)(c), (d) or (e) of the 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(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either “acceptance” or “obtainment” ”. 16. The Supreme Court in the case of A. Subair Vs. State of Kerala, (2009) 6 SCC 587 while placing reliance on the judgment of C.K. Damodaran Nair (supra) in paragraph 15 held as under:- “15. In C.K. Damodaran Nair v. Govt. of India [ (1997) 9 SCC 477 : 1997 SCC (Cri) 654] this Court had an occasion to consider the word “obtained” used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 [now Section 13(1)(d) of the Act, 1988], and it was held: (SCC p. 483, para 12) “12. 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. 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 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 Sections 5(1)(a) and (b)—and not under Sections 5(1)(c), (d) or (e) of the 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(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either ‘acceptance’ or ‘obtainment’.” The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.” 17. It is well settled that demand and acceptance of illegal gratification is a sine qua non to prove the offence of bribe under Section 13(1)(d) of Prevention of Corruption Act as held by the Supreme Court in the case of State of Gujarat Vs. Navinbhai Chandrakant Joshi, (2018) SCC Online SC 699:AIR 1028 SC 3345. Mere recovery of the amount would not prove the charges against the accused which was said to have been paid by way of illegal gratification. If the Court finds that there is no evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, the conviction cannot be sustained. P. Satyanarayan Murthy Vs. District Inspector of Police, State of Andhra Pradesh, (2015) 10 SCC 152 . 18. If the Court finds that there is no evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, the conviction cannot be sustained. P. Satyanarayan Murthy Vs. District Inspector of Police, State of Andhra Pradesh, (2015) 10 SCC 152 . 18. At this stage, Sri Nandit Srivastava, learned Senior Counsel for the appellants submits that at the relevant time, the minimum sentence under Section 13(2) of Prevention of Corruption Act was one year which could have been extended upto seven years. The appellants are Sepoys and Driver. The offence allegedly took place in the year 2000 and 22 long years have gone bye since then. He, therefore, submits that considering the judgment in the case of V.K. Verma Vs. Central Bureau of Investigation, (2014) 3 SCC 485 , this Court may reduce the substantive sentence to the period already undergone and may impose the fine taking into the special circumstances. 19. The Supreme Court in the case of V.K. Verma (supra) held as under:- “8. The long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence. As we have noted above, the FIR was registered by CBI in 1984. The matter came before the Sessions Court only in 1994. The Sessions Court took almost ten years to conclude the trial and pronounce the judgment. Before the High Court, it took another ten years. Thus, it is a litigation of almost three decades in a simple trap case and that too involving a petty amount. 9. In Ashok Kumar v. State (Delhi Admn.) [ (1980) 2 SCC 282 : 1980 SCC (Cri) 426] , the commission of offence of theft was committed in 1971 and the judgment of this Court was delivered in 1980. The conviction was under Section 411 IPC. This Court having regard to the purpose of punishment and “the long protracted litigation”, reduced the sentence to the period already undergone by the convict. 10. In Sharvan Kumar v. State of U.P. [ (1985) 3 SCC 658 : 1985 SCC (Cri) 437], the commission of offence was in 1968 and the judgment was delivered in 1985. This Court having regard to the purpose of punishment and “the long protracted litigation”, reduced the sentence to the period already undergone by the convict. 10. In Sharvan Kumar v. State of U.P. [ (1985) 3 SCC 658 : 1985 SCC (Cri) 437], the commission of offence was in 1968 and the judgment was delivered in 1985. The conviction was under Sections 467 and 471 IPC. In that case also, the long delay in the litigation process was one of the factors taken into consideration by this Court in reducing the sentence to the period already undergone. 11. In Ajab v. State of Maharashtra [1989 Supp (1) SCC 601 : 1989 SCC (Cri) 602] also, this Court had an occasion to examine the similar situation. The offence was committed in 1972 and this Court delivered the judgment in 1989. The conviction was under Section 224 read with Section 395 IPC. In that case also “passage of time was reckoned as a factor for reducing the sentence to the period already undergone”. This Court in that case, while reducing the substantive sentence, increased the fine holding that the same would meet the ends of justice. 12. The appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardiovascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, would it not be economically wasteful, and a liability to the State to keep the appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction. 13. Accordingly, the appeal is partly allowed. The substantive sentence of imprisonment is reduced to the period already undergone. However, an amount of Rs 50,000 is imposed as fine. The appellant shall deposit the fine within three months and, if not, he shall undergo imprisonment for a period of six months. On payment of fine, his bail bond will stand cancelled.” 20. The substantive sentence of imprisonment is reduced to the period already undergone. However, an amount of Rs 50,000 is imposed as fine. The appellant shall deposit the fine within three months and, if not, he shall undergo imprisonment for a period of six months. On payment of fine, his bail bond will stand cancelled.” 20. From the evidence lead by the CBI particularly considering the fact of recovery of foreign currency and the evidence of two passengers whose testimony has remained unshaken, this Court is of the view that the offence under Section 13(1)(d) of Prevention of Corruption Act is proved against the appellants. 21. So far the appeals on merit are concerned, there is no merit in the present appeals, which are hereby dismissed and the conviction of the appellants is upheld. 22. However, considering the judgement of the Supreme Court in the case of V.K. Verma (supra), the special circumstance i.e. 22 years of time period having been lapsed from the date of the alleged offence and their official positions which they held at the time of commission of offence, this Court is of the view that the minimum sentence should be reduced to the sentence already undergone with a fine of Rs.35,000/- to be deposited by each appellant within a period of four weeks from today in favour of Armed Forces Battle Casualties Welfare Fund, S/B Account No.90552010165915, Canara Bank, South Block, Defence Headquarters, New Delhi-110011, IFSC Code:CNRB0019055. If the appellants fail to deposit the fine as directed above, they shall undergo the sentence as awarded by the learned trial court.