Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1669 OF 2009
MRS. NEERAJ DUTTA …Appellant
VERSUS
STATE (GOVT. OF NCT OF DELHI) …Respondent
J U D G M E N T
R. BANUMATHI, J.
This appeal arises out of the judgment dated
02.04.2009 passed by the High Court of Delhi in
Criminal Appeal Nos.15 and 4 of 2007 in and by which
the High Court affirmed the conviction of the appellant
under Section 7 and Section 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988 and the
sentence of imprisonment imposed upon her.
2. Complainant-Ravijit Singh Sethi received a phone
Signature Not Verified
call from the appellant who was working as LDC in Delhi
Digitally signed by
MADHU BALA
Date: 2019.02.28
14:34:48 IST
Reason:
Vidyut Board on 17.04.2000 at 07.30 am asking the
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complainant to meet her at her house in connection
with installation of electricity meter at his shop. When
complainant met the appellant, she demanded bribe of
Rs.15,000/- for installation of meter which was
subsequently reduced to Rs.10,000/- after negotiation.
The appellant agreed to receive the said amount
between 03.00 PM-04.00 PM on the same day at the
shop of the complainant. As the complainant was not
willing to pay the bribe, he made a complaint (Ex.PW-
5/A) before ACB, based on which, FIR was registered.
Inspector O.D. Yadav (PW-6) organised the pre-raid
proceedings. S.K. Awasthi (PW-5) accompanied the
complainant and the complainant paid Rs.10,000/- to
the appellant and she received the amount from the
complainant and the same was transferred to the
second accused-Yogesh Kumar/Driver. Upon receiving
signal from PW-5/shadow witness, PW-6-Inspector
along with raiding party arrived and recovered
Rs.10,000/- from the second accused-Yogesh Kumar.
Hands of both the appellant and accused No.2-Yogesh
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Kumar turned pink, when they were put in the sodium
bicarbonate solution. Upon completion of investigation,
charge sheet was filed against the appellant and
accused Yogesh Kumar under Sections 7 and 13(2) of
Prevention of Corruption Act, 1988 (For short “The P.C.
Act”).
3. Since the complainant passed away before the
trial, he could not be examined. PW-5-shadow witness
was examined who supported the case of the
prosecution. Based upon the evidence of PW-5 and
recovery of money from the appellant, the trial court
held that the demand and acceptance of illegal
gratification has been established by the prosecution
and convicted the appellant-accused No.1 under
Section 7 and Section 13(1)(d) read with Section 13(2)
of the P.C. Act and sentenced her to undergo
imprisonment for two years and three years
respectively and also imposed fine. The trial court also
convicted accused No.2 under Section 12 of the P.C. Act
for abetment of the offence. In appeal, the High Court
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affirmed the conviction of the appellant and the
sentence of imprisonment imposed upon her. The High
Court acquitted the second accused of the charges
levelled against him holding that there is no evidence
to prove conspiracy or abetment. Being aggrieved, the
appellant has preferred this appeal.
4. We have heard Mr. S. Guru Krishna Kumar, learned
senior counsel appearing for the appellant and Ms.
Kiran Suri, learned senior counsel appearing for the
respondent-State.
5. Contention of the appellant is that mere proof of
receipt of money by the accused in the absence of
proof of demand of illegal gratification is not sufficient
to prove the guilt of the accused. It was contended
that when the complainant passed away, primary
evidence of demand is not forthcoming and when the
prosecution could not establish the demand by such
primary evidence, the conviction of the appellant
cannot be sustained.
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6. In support of his contention, the learned senior
counsel for the appellant placed reliance upon P.
Satyanarayana Murthy v. District Inspector of
Police, State of Andhra Pradesh and another
(2015) 10 SCC 152. In the said case, the complainant
died before the trial and thus could not be examined by
the prosecution. Panch witness was examined as PW-1,
which was the sheet anchor of the prosecution case.
Observing that on the demise of the complainant,
primary evidence of the demand is not forthcoming and
inferential deduction of demand is impermissible in law,
in paras (24) and (25), this Court held as under:-
“24. The sheet anchor of the case of the prosecution
is the evidence, in the facts and circumstances of the
case, of PW 1 S. Udaya Bhaskar. ……. Though, a
very spirited endeavour has been made by the learned
counsel for the State to co-relate this statement of PW
1 S. Udaya Bhaskar to the attendant facts and
circumstances including the recovery of this amount
from the possession of the appellant by the trap team,
identification of the currency notes used in the trap
operation and also the chemical reaction of the
sodium carbonate solution qua the appellant, we are
left unpersuaded to return a finding that the
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prosecution in the instant case has been able to prove
the factum of demand beyond reasonable doubt. Even
if the evidence of PW 1 S. Udaya Bhaskar is accepted
on the face value, it falls short of the quality and
decisiveness of the proof of demand of illegal
gratification as enjoined by law to hold that the
offence under Section 7 or Sections 13(1)( d )( i ) and ( ii )
of the Act has been proved. True it is, that on the
demise of the complainant, primary evidence, if any,
of the demand is not forthcoming. According to the
prosecution, the demand had in fact been made on 3-
10-1996 by the appellant to the complainant and on
his complaint, the trap was laid on the next date i.e. 4-
10-1996. However, the testimony of PW 1 S. Udaya
Bhaskar does not reproduce the demand allegedly
made by the appellant to the complainant which can
be construed to be one as contemplated in law to
enter a finding that the offence under Section 7 or
Sections 13(1)(d)(i) and (ii) of the Act against the
appellant has been proved beyond reasonable doubt.
25. In our estimate, to hold on the basis of the
evidence on record that the culpability of the appellant
under Sections 7 and 13(1)( d )( i ) and ( ii ) has been
proved, would be an inferential deduction which is
impermissible in law. Noticeably, the High Court had
acquitted the appellant of the charge under Section 7
of the Act and the State had accepted the verdict and
has not preferred any appeal against the same. The
analysis undertaken as hereinabove qua Sections 7
and 13(1)(d)(i) and (ii) of the Act, thus, had been to
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underscore the indispensability of the proof of demand
of illegal gratification”.…….. [Underlining added].
In Satyanarayana , the court proceeded under the
footing that failure of the prosecution to prove the
demand for illegal gratification due to the death of
complainant would be fatal to the prosecution case and
recovery of the amount from the accused would not
entail his conviction.
7. Ms. Kiran Suri, learned senior counsel for the State
submitted that in Satyanarayana , the court did not
notice the line of judgments and the consistent view
taken by this Court in various decisions that demand
can be proved either by direct evidence or by drawing
inference from other evidence like evidence of panch
witness and the circumstances.
8. The learned senior counsel has drawn our
attention to number of judgments where accused was
convicted even when the evidence of complainant was
not available either due to death of complainant or
where the complainant had turned hostile. In Kishan
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Chand Mangal v. State of Rajasthan (1982) 3 SCC
466, by the time of trial, the complainant Rajendra Dutt
expired and he could not be examined. The Court relied
upon evidence of two Motbir witnesses Ram Babu (PW-
1) and Keshar Mal (PW-2), Dy. SP Mahavir Prasad (PW-7)
and the factum of recovery of money from the accused
and convicted the accused thereon. Affirming the
conviction of the appellant/accused, this Court held that
“…..the tell-tale circumstances which do indicate that
there must have been a demand……and it is not proper
to say that there is no evidence of demand of bribe as
on November 20, 1974.”
9. In Hazari Lal v. State (Delhi Administration)
(1980) 2 SCC 390, the complainant was declared
hostile and the only other evidence was that of
Inspector (PW-8) to whom the complainant made
statement when he went to lodge the complaint and
another witness who has supported the prosecution
case only in some particulars. Based on the evidence
of the Inspector who laid the trap and panch witness
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and observing that it is not necessary that the passing
of money should be proved by direct evidence, in
para (10) of Hazari Lal , the Supreme Court held as
under:-
“10. ……It is not necessary that the passing of money
should be proved by direct evidence. It may also be
proved by circumstantial evidence. The events which
followed in quick succession in the present case lead
to the only inference that the money was obtained by
the accused from PW 3. Under Section 114 of the
Evidence Act the court may presume the existence of
any fact which it thinks likely to have happened,
regard being had to the common course of natural
events, human conduct and public and private
business, in their relation to facts of the particular
case. One of the illustrations to Section 114 of the
Evidence Act is that the court may presume that a
person who is in possession of the stolen goods soon
after the theft, is either the thief or has received the
goods knowing them to be stolen, unless he can
account for his possession. So too, in the facts and
circumstances of the present case the court may
presume that the accused who took out the currency
notes from his pocket and flung them across the wall
had obtained them from PW 3, who a few minutes
earlier was shown to have been in possession of the
notes. Once we arrive at the finding that the accused
had obtained the money from PW 3, the presumption
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under Section 4(1) of the Prevention of Corruption Act
is immediately attracted. The presumption is of course
rebuttable but in the present case there is no material
to rebut the presumption. The accused was, therefore,
rightly convicted by the courts below.” [Underlining
added].
10. In M. Narsinga Rao v. State of A.P. (2001) 1
SCC 691, both complainant-PW-1 and PW-2-panch
witness have turned hostile. Appellant/accused thereon
contended that the presumption under Section 20 of
the Act could be drawn only when the prosecution
succeeded in establishing the demand by adducing
direct evidence that the delinquent public servant
accepted or obtained gratification and that the same
cannot depend on an inference for affording foundation
for the legal presumption envisaged in Section 20 of
the Act. Rejecting the said contention and considering
the scope of the expression “shall presume” employed
in Section 20(1) of the Act, it was held as under:-
“14. When the sub-section deals with legal
presumption it is to be understood as in terrorem i.e.
in tone of a command that it has to be presumed that
the accused accepted the gratification as a motive or
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reward for doing or forbearing to do any official act
etc., if the condition envisaged in the former part of
the section is satisfied. The only condition for drawing
such a legal presumption under Section 20 is that
during trial it should be proved that the accused has
accepted or agreed to accept any gratification. The
section does not say that the said condition should be
satisfied through direct evidence. Its only requirement
is that it must be proved that the accused has
accepted or agreed to accept gratification. Direct
evidence is one of the modes through which a fact can
be proved. But that is not the only mode envisaged in
the Evidence Act.
…………
17. Presumption is an inference of a certain fact
drawn from other proved facts. While inferring the
existence of a fact from another, the court is only
applying a process of intelligent reasoning which the
mind of a prudent man would do under similar
circumstances. Presumption is not the final conclusion
to be drawn from other facts. But it could as well be
final if it remains undisturbed later. Presumption in law
of evidence is a rule indicating the stage of shifting the
burden of proof. From a certain fact or facts the court
can draw an inference and that would remain until
such inference is either disproved or dispelled.
……..
19. Illustration (a) to Section 114 of the Evidence Act
says that the court may presume that “a man who is
in the possession of stolen goods soon after the theft
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is either the thief or has received the goods knowing
them to be stolen, unless he can account for his
possession”. That illustration can profitably be used in
the present context as well when prosecution brought
reliable materials that the appellant’s pocket
contained phenolphthalein-smeared currency notes for
Rs 500 when he was searched by PW-7 DSP of Anti-
Corruption Bureau. That by itself may not or need not
necessarily lead to a presumption that he accepted
that amount from somebody else because there is a
possibility of somebody else either stuffing those
currency notes into his pocket or stealthily inserting
the same therein. But the other circumstances which
have been proved in this case and those preceding
and succeeding the searching out of the tainted
currency notes, are relevant and useful to help the
court to draw a factual presumption that the appellant
had willingly received the currency notes.”
[Underlining added].
11. The direct or primary evidence of demand may not
be available at least in three instances:- (i) where the
complainant is dead and could not be examined; (ii)
complainant turned hostile; and (iii) complainant could
not be examined either due to non-availability or other
reasons. Direct proof of demand may not be available
in all the above instances but from the evidence of
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panch witness, acceptance of money was proved by
Phenolphthalein Test and by raising presumption under
Section 20 of the Act, it is permissible to draw inference
to prove the demand.
12. On behalf of the respondent, it was submitted that
under Section 20 of the P.C. Act, the Court is bound to
draw presumption mentioned therein and the
presumption in question will hold good unless the
accused proves the contrary. It was contended that the
purpose of presumption under Section 20 of the Act is
to relieve the prosecution from the burden of proving a
fact and while so, insistence upon primary evidence for
proving demand is not in consonance with the view
taken by the Supreme Court in line of judgments.
13. The learned senior counsel for the respondent
submitted that the court must take into consideration
the facts and circumstances brought on record and may
draw inference to arrive at the conclusion whether
demand and acceptance of the illegal gratification has
been proved or not. Insistence of direct proof or
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primary evidence for proving the demand may not be in
consonance with the view taken by this Court in
number of judgments. The learned senior counsel has
drawn our attention to other cases to substantiate her
contention that Satyanarayana had not taken note of
the consistent view taken by the Supreme Court. We
are not delving into the controversy any further. We are
of the opinion that the following issue requires
consideration by the larger Bench:-
“The question whether in the absence of
evidence of complainant/direct or primary
evidence of demand of illegal gratification, is it
not permissible to draw inferential deduction of
culpability/guilt of a public servant under
Section 7 and Section 13(1)(d) read with
Section 13(2) of Prevention of Corruption Act,
1988 based on other evidence adduced by the
prosecution.”
15. In the light of the consistent view taken by this
Court in various judgments, we have some reservation
in respect of the observation and findings recorded by
this Court in P. Satyanarayana Murthy v. District
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Inspector of Police, State of Andhra Pradesh and
another (2015) 10 SCC 152. The matter be placed
before the Hon’ble Chief Justice for appropriate orders.
….…………….……………J.
[R. BANUMATHI]
……………………….……………J.
[R. SUBHASH REDDY]
New Delhi;
February 28, 2019
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