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
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
