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

call from the appellant who was working as LDC in Delhi

Vidyut  Board  on  17.04.2000 at  07.30  am asking  the

1

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

2

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

3

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.

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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   

15