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Tuesday, October 20, 2015

legal presumption under Section 20 can be drawn are wholly absent.=The case of the prosecution is that the appellant-accused was, at the relevant point of time working as Deputy Tahsildar, Civil Supplies Mandal Revenue Officer, Kurnool in the State of Andhra Pradesh. The complainant PW- 1 K. Sudhakar Reddy had a Fair Price Shop at Narsimha Reddy Nagar Kurnool. It is alleged by the complainant that the appellant–accused used to collect Rs.50/- per month from each fair price shop dealer in Kurnool as monthly mamool and when he visited the shop of the complainant on 17.9.1993 he demanded Rs.300/- towards the monthly mamools from April 1993 by threatening to seize the stocks and foist a case against him. As the complainant was not willing to pay the said amount he had approached PW-7, Deputy Superintendant of Police, ACB, Kurnool and submitted Exh.P.1 complaint in writing on 18.9.1993 to him.= It is settled law that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is sine-qua-non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13(1)(d) 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. 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. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three-Judge Bench of this Court in B. Jayaraj vs. State of Andhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayna Murthy vs. The District Inspector of Police and another [(2015 (9) SCALE 724]. In the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. The judgments of the Courts below are, therefore, liable to be set aside. For the aforesaid reasons the appeal is allowed and the conviction of the appellant under Section 7 and under Section 13(1)(d) read with Section 13(2) of the Act and the sentences imposed are set aside and he is acquitted of the charges. The bail bond, if any, furnished by the appellant be released.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO.  1355 OF 2015
               [ Arising out of  SLP (Crl.) No.2958  of 2011]


     N. Sunkanna                             …     Appellant

                                   versus

State of Andhra Pradesh                   …    Respondent



                               J U D G M E N T


C. NAGAPPAN, J.


Leave granted.


This appeal is directed against the Judgment dated 2.7.2010  passed  by  the
High Court of Andhra Pradesh affirming the conviction  and  sentence  passed
by the Additional Special Judge for SPE and  ACB  cases,  City  Civil  Court
Hyderabad,  whereby  the  appellant-accused  has  been   found   guilty   of
commission of offences under Sections 7, 13(1)(d) read  with  Section  13(2)
of the Prevention of Corruption Act, 1988. The  appellant-accused  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.

The case of the prosecution  is  that  the  appellant-accused  was,  at  the
relevant point of time working as Deputy Tahsildar,  Civil  Supplies  Mandal
Revenue Officer, Kurnool in the State of Andhra Pradesh. The complainant PW-
1 K. Sudhakar Reddy had a Fair Price Shop at Narsimha Reddy  Nagar  Kurnool.
It is alleged by the complainant that the appellant–accused used to  collect
Rs.50/- per month from each fair price shop dealer  in  Kurnool  as  monthly
mamool and when he visited the shop  of  the  complainant  on  17.9.1993  he
demanded  Rs.300/-  towards  the  monthly  mamools  from   April   1993   by
threatening to seize the stocks and  foist  a  case  against  him.   As  the
complainant was not willing to pay the said amount he had  approached  PW-7,
Deputy  Superintendant  of  Police,  ACB,  Kurnool  and  submitted   Exh.P.1
complaint in writing on 18.9.1993 to him.

PW-7 the Deputy Superintendant of  Police,  registered  a  case  and  issued
Exh.P.9 F.I.R. On 20.9.1993 he secured PW-2 N.  Ravindranath  Reddy,  Senior
Assistant in the office of  State  Housing  Corporation,  Kurnool  and  LW-3
Abdul Jallel, to act as Panch Witnesses and explained  the  significance  of
chemical  test  to  them.   He  got  the   currency   notes   treated   with
phenolphthalein powder and entrusted the same to  the  complainant.  Exh.P-3
is the pre-trap proceedings.  They reached Mandal Revenue Office Kurnool  at
1.30 p.m.  Thereafter, according to the prosecution the complainant  relayed
pre-arranged signal to them at 1.45 p.m. and they  entered  the  office  and
sodium carbonate solution test was   conducted    on    the    right    hand
fingers of the accused as well as the left  shirt  pocket.  Both  the  tests
proved to be positive and tainted currency notes  were  recovered  from  the
possession of the accused.  On completion of investigation the sanction  was
obtained and charge-sheet was  filed  against  the  appellant-accused.   The
charges were framed to which the accused pleaded not guilty.  In  the  trial
PWs 1 to 8 were examined and Exh. P1 to P9 and M.Os 1 to 9  were  marked  on
the side of the prosecution.  The  accused    filed  written  statement  and
examined DWs 1 to 4 and marked Exh. D1 to D8 on his side. The  plea  of  the
accused was that target was fixed by the Department to collect  contribution
for purchase of National Savings Certificate and the amount that  was  given
by the complainant was towards that only.

We heard Mr. Guntur Prabhakar, learned counsel for the appellant and Mr.  A.
Venkateswara Rao, learned counsel appearing on  behalf  of  the  respondent-
State. The complainant K. Sudhakar Reddy was examined as  PW-1  and  he  did
not support the prosecution case.  He has testified that  Exh.P-1  complaint
is in his hand writing but the contents are not true and he wrote  the  same
as dictated by the ACB officials and he gave the amount  of  Rs.300  to  the
accused with a request  to  purchase  National  Savings  Certificates.   The
prosecution declared him as hostile. PW-2 N. Ravindranath Reddy,  the  Panch
witness had testified that he  was  summoned  by  PW-7  DSP  E.  Damodar  on
20.9.1993 and he went through the complaint and verified the  contents  from
the complainant who acknowledged the fact that the accused  had  demanded  a
sum of Rs.300/- as illegal gratification.  Though the  complainant  did  not
support the prosecution case it is on the aforesaid basis  the  trial  court
as well as the High Court held the offences as proved and in doing  so  they
have also relied on the legal presumption under Section 20 of the Act.

The prosecution examined the other fair price shop  dealers  in  Kurnool  as
PWs 3, 4 and 6 to prove that the accused was receiving monthly mamools  from
them. PWs 4 and 6 did not state so and they  were  declared  hostile.   PW-3
though in the  examination-in-chief  stated  so,  in  the  cross-examination
turned round and stated that the accused never asked any monthly mamool  and
he did not pay Rs.50/- at any time.  The prosecution has  not  examined  any
other witness present at the  time  when  the  money  was  demanded  by  the
accused and also when the money was allegedly handed-over to the accused  by
the complainant. The complainant   himself had disowned  his  complaint  and
has turned hostile and there is no other evidence to prove that the  accused
had made any demand. In short there is no  proof  of  the  demand  allegedly
made by the accused.  The only other material available is the  recovery  of
the tainted  currency  notes  from  the  possession  of  the  accused.   The
possession is also admitted by the accused.   It is settled  law  that  mere
possession and recovery of the  currency  notes  from  the  accused  without
proof of demand will not bring home  the  offence  under  Section  7,  since
demand of illegal gratification  is  sine-qua-non  to  constitute  the  said
offence. The above also will be conclusive  insofar  as  the  offence  under
Section 13(1)(d) 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.  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.  Unless  there  is  proof  of  demand  of
illegal gratification proof of acceptance will not follow. Reference may  be
made to the two decisions of three-Judge Bench of this Court in  B.  Jayaraj
vs. State of Andhra Pradesh [(2014) 13 SCC 55] and  P.  Satyanarayna  Murthy
vs. The District Inspector of Police and another [(2015 (9) SCALE 724].
In the present case the primary facts  on  the  basis  of  which  the  legal
presumption under Section 20 can be drawn are wholly absent.  The  judgments
of the Courts below are, therefore,  liable  to  be  set  aside.    For  the
aforesaid reasons the appeal is allowed and the conviction of the  appellant
under Section 7 and under Section 13(1)(d) read with Section  13(2)  of  the
Act and the sentences imposed are set aside  and  he  is  acquitted  of  the
charges. The bail bond, if any, furnished by the appellant be released.

                                                                ……………………….J.
                                                                (M.Y. Eqbal)


                                                                .………………………J.
                                                                (C.Nagappan)


New Delhi;
October  14, 2015

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