Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 2136 of 2010
Jagtar Singh … Appellant
Versus
State of Punjab … Respondent
J U D G M E N T
Rajesh Bindal, J.
1. The appellant has challenged his conviction under the
Prevention of Corruption Act, 1988 (for short ‘the Act’). He was
convicted by the Trial Court vide judgment dated 5.8.2005. His
conviction was upheld by the High Court of Punjab and Haryana
vide judgment dated March 2, 2010.
2. The facts, as are evident from the paper book, are that
a demand of ₹ 500/- was made as illegal gratification and the
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.03.23
17:29:40 IST
Reason:
appellant accepted a sum of ₹ 300/- for supplying copy of death
certificate of Maghar Singh (deceased).
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3. In the complaint, it was alleged that for getting the
death certificate of Maghar Singh S/o. Hari Singh, who expired on
6.3.2003, Ranjit Singh, his son, requested his cousin Jit Singh to
collect the same. On 17.10.2003, Jit Singh/complainant met the
appellant in connection with supply of death certificate, who
demanded ₹ 500/- as illegal gratification. Final settlement was for
payment of ₹ 300/-. As Ajit Singh was reluctant to pay the illegal
gratification, he contacted Chamkaur Singh, Ex-Member
Panchayat and on his suggestion went to the Office of DSP,
Vigilance, Faridkot and got his statement recorded, on the basis of
which FIR was registered. The complainant handed over three
currency notes of ₹ 100/- each to the DSP, Vigilance, who after
coating the same with phenolphthalein powder recorded their
numbers in the memo and handed over the same again to Jit
Singh. Chamkaur Singh was made the shadow witness. It was
alleged that the appellant was arrested red-handed while
accepting the illegal gratification.
4. During the course of trial, Jit Singh, Complainant (PW-1)
and Chamkaur Singh (PW-2) did not support the prosecution
version. They were declared hostile. Usha Kumari, a computer
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operator in the office of Civil Surgeon (PW-3) deposed that the
appellant was working in the office as cleaner. However, in
emergency he could be deputed for discharging other duties also.
The death certificate bearing no. 1241787 pertaining to late
Maghar Singh was prepared in the handwriting of Class IV, Basant
Singh. It had been signed by the Additional District Registrar,
Birth and Deaths, Faridkot. She also stated that sometimes the
certificates are dispatched to the applicants and sometimes these
are given by hand. The death certificate in question was
prepared on 17.10.2003. The appellant was deputed to prepare
the death certificates on 20.10.2003. Meaning thereby the death
certificate had been prepared prior to the date on which the
appellant was assigned the duty to prepare the death certificate.
He otherwise was not responsible for that job as he was merely
working as cleaner in the office.
5. HC Kirpal Singh (PW-4), HC Parsan Singh (PW-6) and C.
Surinderjit Singh (PW-7) were the formal witnesses whereas
Harbans Kaur, Clerk of Civil Surgeon, Faridkot (PW-5) proved
certain official record and sanction of prosecution in the case of
the appellant. Gurjinder Singh, (PW-8), District Social Security
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Officer, Faridkot stated about recovery of ₹ 300/- from the
appellant. These were the same currency notes which were
coated with phenolphthalein powder. In his statement recorded
under Section 313 CrPC, the appellant submitted that he has been
falsely implicated in the case.
6. The argument raised by the learned counsel for the
appellant, relying upon the Constitution Bench judgment of this
Court in Neeraj Dutta v. State (Govt. of NCT of Delhi) (2022)
SCC Online SC 1724 , is that the demand and recovery both
must be proved to sustain conviction under the Act. In the case in
hand, at the most, it can be said that recovery has been proved
though that is also seriously doubtful. There is no evidence of
demand of illegal gratification. He further submitted that the
appellant was merely working as cleaner in the office, and he was
not having any authority either to prepare or deliver the death
certificates. Admittedly, he was assigned the duty to prepare the
death certificates on 20.10.2003 and in the case in hand the
death certificate had been prepared on 17.10.2003.
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7. On the other hand, learned counsel for the State
submitted that the fact that the phenolphthalein coated currency
notes with same serial numbers were recovered from the
appellant in the presence of independent witnesses, inference can
be drawn that there was demand and that is why he accepted the
illegal gratification, hence, the conviction of the appellant
deserves to be upheld.
8. Heard learned counsel for the parties and perused the
material on record.
9. The conclusions of the Constitution Bench judgment
referred above, have been summarized in paragraph 74, which
read thus:
“74. What emerges from the aforesaid discussion is
summarised as under:
(a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in
issue by the prosecution is a sine qua non in
order to establish the guilt of the accused
public servant under Sections 7 and 13(1)(d)
(i) and (ii) of the Act.
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(b) In order to bring home the guilt of the
accused, the prosecution has to first prove
the demand of illegal gratification and the
subsequent acceptance as a matter of fact.
This fact in issue can be proved either by
direct evidence which can be in the nature of
oral evidence or documentary evidence.
(c) Further, the fact in issue, namely the proof
of demand and acceptance of illegal
gratification can also be proved by
circumstantial evidence in the absence of
direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the
demand and acceptance of illegal gratification by
the public servant, the following aspects have to be
borne in mind:
(i) if there is an offer to pay by the bribe
giver without there being any demand from
the public servant and the latter simply
accepts the offer and receives the illegal
gratification, it is a case of acceptance as
per Section 7 of the Act. In such a case,
there need not be a prior demand by the
public servant.
(ii) On the other hand, if the public
servant makes a demand and the bribe
giver accepts the demand and tenders the
demanded gratification which in turn is
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received by the public servant, it is a case
of obtainment . In the case of obtainment,
the prior demand for illegal gratification
emanates from the public servant. This is
an offence under Section 13(1)(d)(i) and (ii)
of the Act.
(iii) In both cases of (i) and (ii) above,
the offer by the bribe giver and the
demand by the public servant
respectively have to be proved by the
prosecution as a fact in issue. In other
words, mere acceptance or receipt of
an illegal gratification without anything
more would not make it an offence
under Section 7 or Section 13(1)(d), (i)
and (ii) respectively of the Act .
Therefore, under Section 7 of the Act, in
order to bring home the offence, there must
be an offer which emanates from the bribe
giver which is accepted by the public
servant which would make it an offence.
Similarly, a prior demand by the public
servant when accepted by the bribe
giver and in turn there is a payment
made which is received by the public
servant, would be an offence of
obtainment under Section 13(1)(d) and
(i) and (ii) of the Act.
(e) The presumption of fact with regard to
the demand and acceptance or obtainment of
an illegal gratification may be made by a
court of law by way of an inference only when
the foundational facts have been proved by
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relevant oral and documentary evidence and
not in the absence thereof. On the basis of the
material on record, the Court has the discretion to
raise a presumption of fact while considering
whether the fact of demand has been proved by the
prosecution or not. Of course, a presumption of
fact is subject to rebuttal by the accused and in the
absence of rebuttal presumption stands.
(f) In the event of complaint turns ‘hostile’, or has
died or is unavailable to let in his evidence during
trial, demand of illegal gratification can be proved
by letting in the evidence of any other witness who
can again let in evidence, either orally or by
documentary evidence or the presumption can
prove the case by circumstantial evidence. The
trial does not abate nor does it result in an order of
acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is
concerned, on the proof of the facts in issue,
Section 20 mandates the court to raise a
presumption that illegal gratification was for
the purpose of a motive or reward as
mentioned in the said Section. The said
presumption has to be raised by the court as a legal
presumption or a presumption in law. Of course,
the said presumption is also subject to rebuttal.
Section 20 does not apply to Section 13(1)(d) (i)
and (ii) of the Act.
(h) We clarify that the presumption in law under
Section 20 of the Act is distinct from presumption of
fact referred to above in point (e) as the former is a
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mandatory presumption while the latter is
discretionary in nature.”
(emphasis added)
10. The referred question was answered in paragraph 76 of
the aforesaid judgment, which reads thus:
“76. Accordingly, the question referred for
consideration of this Constitution Bench is answered as
under:
In the absence of evidence of the
complainant (direct/primary,
oral/documentary evidence), it is permissible
to draw an inferential deduction of
culpability/guilt of a public servant under
Section 7 and Section 13(1)(d) read with
Section 13(2) of the Act based on other
evidence adduced by the prosecution .”
(emphasis added)
11. In the case in hand, Jit Singh, complainant as well as
Chamkaur Singh, shadow witness have turned hostile. The Trial
Court had specifically held that there is no evidence produced on
record to prove the demand of illegal gratification. It is not the
case in which the demand was reiterated when the money was
allegedly paid to him. Gurjinder Singh (PW-8) is only a witness
who stated that he had recovered the money from the appellant.
The High Court has passed its judgment on the assumption that
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the money having been recovered from the appellant, there was
demand of illegal gratification. This is not a case where there was
circumstantial evidence to prove the demand.
12. If the evidence produced on record by the prosecution
is examined in the light of the law laid down by the Constitution
Bench in Neeraj Dutta v. State (Govt. of N.C.T. of Delhi)
(supra), the conviction and sentence of the appellant cannot be
legally sustained.
13. The appeal is, accordingly, allowed. The impugned
order passed by the High Court and that of the Trial Court are set
aside. The appellant is acquitted of the charges and his bail bond
stands discharged.
________________, J.
(Abhay S. Oka)
________________, J.
(Rajesh Bindal)
New Delhi
March 23, 2023.
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