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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.  

1. Leave granted.

2. 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

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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.

3. 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

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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.

4. 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

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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.

5. 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

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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.

6. 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.

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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

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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].

7. 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

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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