REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
The Apex Court observed that in so far as the offence under Section 7 of Prevention of Corruption Act, 1988 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and that 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.CRIMINAL APPEAL NO.
696
OF 2014
(Arising Out of SLP (Crl.) No.2085 of 2012)
B. JAYARAJ
... APPELLANT (S)
... RESPONDENT (S)
VERSUS
STATE OF A.P.
JUDGMENT
RANJAN GOGOI, J.
Dated;MARCH 28, 2014.
1. Leave granted.
2. This appeal is directed against the judgment and order
dated 25.04.2011 passed by the High Court of Andhra
Pradesh affirming the order of conviction passed by the
Additional Special Judge for SPE & ACB cases, City Civil Court
Hyderabad, whereby the accused appellant has been found
guilty of commission of the offences under Sections 7 and 13
(1)(d)(i)(ii) read with Section 13(2) of the Prevention of
Corruption Act, 1988 (for short “the Act”).
appellant
has
been
sentenced
to
The accused
undergo
rigorous
imprisonment for one year for each of the offences and also
to pay a fine of Rs.1000/- in default to suffer simple
imprisonment for three months more.
3.
According to the prosecution, the accused appellant
was, at the relevant point of time, working as a Mandal
Revenue officer (MRO) in the Ranga Reddy District of the
State of Andhra Pradesh.
The complainant K.Venkataiah
(PW-2) had a fair price shop in Dadupally village.
On
8.11.1995, the complainant, it is alleged, had approached
the accused appellant for release of essential commodities
against his shop for the month of November, 1995.
The
accused appellant, it is claimed, demanded a bribe of
Rs.250/- to issue the release order. As the complainant was
not willing to pay the said amount, he had approached listed
witness No.9 K.Narsinga Rao, (since deceased) Deputy
Superintendent of Police, ACB, Hyderabad on 9.11.1995 and
submitted a written complaint (Exbt.P-11) before him.
According to the prosecution, LW-9 after verifying the
contents of the complaint registered a case and issued
Exhibit P-12 (FIR). LW-9 directed the complainant to come
with the bribe amount on 13.11.995. It is also alleged that
LW-9 summoned PW-1, S. Hanuma Reddy, Deputy Director of
Insurance to act as a panch witness and explained the details
of the complaint (Exbt.P-11) to him.
Furthermore, according
to the prosecution, LW-9 got the currency notes treated with
phenolphthalein powder and also explained to PW-1 the
significance of the sodium carbonate solution test.
The
details of the trap that was planned was explained to all
concerned including the complainant. Accordingly, the plan
was put into execution and on receipt of the pre-arranged
signal to the trap laying officer, the police party headed by
LW-9, which also included PW-5, rushed into the office of the
accused appellant. Thereafter, according to the prosecution,
the sodium carbonate solution test was conducted on the
right hand fingers of the accused as well as the right shirt
pocket.
Both tests proved to be positive.
The tainted
currency notes were recovered from the possession of the
accused.
4.
Chargesheet was filed against the accused-appellant on
completion of investigation.
Upon grant of sanction for
prosecution, cognizance of the offences alleged was taken
and charges were framed to which the accused pleaded not
guilty. In the course of the trial 5 witnesses were examined
on behalf of the prosecution and 12 documents (Exbt. P-1 to
P-12) besides 10 material objects (MOs 1 to 10) were
exhibited. The plea of the accused was that on the date of
the trap, PW-2, the complainant had put the currency notes
in his shirt pocket with a request to have the same deposited
in the bank as fee for renewal of the licence of the
complainant. It was at this point of time that the police party
had come and seized the currency notes after taking the
same from his pocket.
5.
We have heard Mr. Guntur Prabhakar, learned counsel
for the appellant and Mr. Mayur R. Shah, learned counsel
appearing on behalf of the respondent-State.
6.
PW-2, the complainant, did not support the prosecution
case.
He disowned making the complaint (Exbt.P-11) and
had stated in his deposition that the amount of Rs.250/- was
paid by him to the accused with a request that the same may
be deposited with the bank as fee for the renewal of his
licence. He was, therefore, declared hostile. However, PW-1
(panch witness) had testified that after being summoned by
LW-9,
K. Narsinga Rao, on 13.11.1995, the contents of
Exhibit P-11 (complaint) filed by the complainant PW-2 were
explained to him in the presence of the complainant who
acknowledged the fact that the accused appellant had
demanded a sum of Rs.250/- as illegal gratification for
release of the PDS items. It is on the aforesaid basis that the
liability of the accused-appellant for commission of the
offences alleged was held to be proved, notwithstanding the
fact that in his evidence the complainant PW-2 had not
supported the prosecution case. In doing so, the learned trial
court as well as the High Court also relied on the provisions
of Section 20 of the Act to draw a legal presumption as
regards the motive or reward for doing or forbearing to do
any official act after finding acceptance of illegal gratification
by the accused-appellant.
7.
In so far 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 Vs. State of A.P.1 and C.M. Girish Babu Vs.
C.B.I.2
8.
In the present case, the complainant did not support the
prosecution case in so far as demand by the accused is
concerned.
The prosecution has not examined any other
witness, present at the time when the money was allegedly
handed over to the accused by the complainant, to prove
that the same was pursuant to any demand made by the
accused. When the complainant himself had disowned what
he had stated in the initial complaint (Exbt.P-11) before LW-
1
2
(2010) 15 SCC 1
(2009) 3 SCC 779
9, and there is no other evidence to prove that the accused
had made any demand, the evidence of PW-1 and
contents
the
of Exhibit P-11 cannot be relied upon to come to
the conclusion that the above material furnishes proof of the
demand allegedly made by the accused. We are, therefore,
inclined to hold that the learned trial court as well as the
High Court was not correct in holding the demand alleged to
be made by the accused as proved. The only other material
available is the recovery of the tainted currency notes from
the possession of the accused.
In fact such possession is
admitted by the accused himself.
Mere possession and
recovery of the currency notes from the accused without
proof of demand will not bring home the offence under
Section 7. The above also will be conclusive in so far as the
offence under Section 13(1)(d)(i)(ii) is concerned as in the
absence of any proof of demand for illegal gratification, the
use of corrupt or illegal means or abuse of position as a
public servant to obtain any valuable thing or pecuniary
advantage cannot be held to be established.
9.
In so far as the presumption permissible to be drawn
under Section 20 of the Act is concerned, such presumption
can only be in respect of the offence under Section 7 and not
the offences under Section 13(1)(d)(i)(ii) of the Act. In any
event, it is only on proof of acceptance of illegal gratification
that presumption can be drawn under Section 20 of the Act
that such gratification was received for doing or forbearing to
do any official act. Proof of acceptance of illegal gratification
can follow only if there is proof of demand. As the same is
lacking in the present case the primary facts on the basis of
which the legal presumption under Section 20 can be drawn
are wholly absent.
10. For the aforesaid reasons, we cannot sustain the
conviction of the appellant either under Section 7 or under
13(1)(d)(i)(ii) read with Section 13(2) of the Act. Accordingly,
the conviction and the sentences imposed on the accused-
appellant by the trial court as well as the High Court by order
dated 25.4.2011 are set aside and the appeal is allowed.
.................................CJI.
[P. SATHASIVAM]
....................................J.
[RANJAN GOGOI]
.....................................J.
[N.V. RAMANA]
NEW DELHI,
MARCH 28, 2014.
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