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Saturday, March 29, 2014

Sections 7 and 13 (1)(d)(i)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short “the Act”). and sec. 20 of the Act - Presumption - Complainant not supported the prosecution - no other witness was examined who saw the handed over the tainted money to the accused - mere possession of tainted amount makes an offence ? - Trial court and high court held that it is an offence - but the Apex court held that in the absence of proof of demand of bribe, mere possession can not fasten liability as the presumption under sec.20 can be drawn only under sec.7 but not to an offences under sec. 13(1)(d)(i)(ii) of the Act. and as such the apex court set aside the order and acquitted the accused = B. JAYARAJ ... APPELLANT (S) VERSUS STATE OF A.P. ... RESPONDENT (S) = 2014 (March . Part) judis.nic.in/supremecourt/filename=41352

 Sections 7 and  13  (1)(d)(i)(ii) read with Section 13(2) of the  Prevention  of  Corruption  Act,  1988  (for short “the Act”).  and sec. 20 of the Act - in the absence of proof of demand , no offence be fasten for mere possession -  Presumption - Complainant not supported the prosecution - no other witness was examined who saw the handed over the tainted money to the accused - mere possession of tainted amount makes an offence ? - Trial court and high court held that it is an offence - but the Apex court held that in the absence of proof of demand of bribe, mere possession can not fasten liability as the presumption under sec.20 can be drawn only under sec.7  but not to an offences under sec.  13(1)(d)(i)(ii) of the Act.  and as such the apex court set aside the order and acquitted the accused =
 
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”).  The accused  appellant  has  been  sentenced  to  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.=

             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-9, and there is no other evidence to prove  that  the  accused
had made any demand, the evidence of PW-1 and  the  contents    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.
2014 (March . Part) judis.nic.in/supremecourt/filename=41352
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

                   REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
             CRIMINAL APPEAL  NO.     696                OF 2014
                 (Arising Out of SLP (Crl.) No.2085 of 2012)


B. JAYARAJ                              ...  APPELLANT (S)

                                   VERSUS

STATE OF A.P.                                ...   RESPONDENT (S)




                               J U D G M E N T

RANJAN GOGOI, J.

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”).  The accused  appellant  has  been  sentenced  to  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-9, and there is no other evidence to prove  that  the  accused
had made any demand, the evidence of PW-1 and  the  contents    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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[1]    (2010) 15 SCC 1
[2]    (2009) 3 SCC 779

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