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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.
———————–
[1] (2010) 15 SCC 1
[2] (2009) 3 SCC 779

———————–
8

 

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