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NON-REPORTABLE

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO. 31 OF 2009

P. SATYANARAYANA MURTHY …APPELLANT

VERSUS

THE DIST. INSPECTOR OF POLICE AND ANR.              …RESPONDENTS

J U D G M E N T

AMITAVA ROY, J.

The instant appeal calls in question the judgment

and order dated 25.4.2008 rendered by the High Court of

Judicature,  Andhra  Pradesh  at  Hyderabad  in  Criminal

Appeal No. 262 of 2002, sustaining the conviction of the

appellant under Section 13(1)(d)(i) & (ii) read with Section

13(2) of the Prevention of Corruption Act 1988 (for short

hereinafter  referred  to  as  “the  Act”)  and  sentence

thereunder,  however  setting  aside  his  conviction  and

sentence under Section 7 of the Act.

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2. We  have  heard  Mr.  A.T.M.  Ranga  Ramanujam,

learned senior  counsel  for  the appellant  and Ms.  Prerna

Singh, learned counsel for the respondents.

3. The prosecution case stems from a complaint laid

by  one  S.  Jagan  Mohan  Reddy  (since  deceased)  to  the

Deputy Superintendent of Police, Anti Corruption Bureau,

Kurnool  alleging  that  the  appellant  who,  at  the  relevant

time  was  the  Assistant  Director,  Commissionerate  of

Technical  Education,  Hyderabad  had  on  3.10.1996

demanded  by  way  of  illegal  gratification  Rs.  1000/-  for

effecting  renewal  of  the  recognition  of  his  (complainant)

typing institute, being run in the name and style of Rama

Typewriting  Institute  in  Laxminagar  B.  Camp,  Kurnool

since 1992.  The complaint disclosed that on negotiation,

the  demand  was  scaled  down  to  Rs.  500/-  and  the

appellant  asked  him  (complainant)  to  meet  him  on

4.10.1996 in Room No. 68 of  Meenakshi  Lodge,  Kurnool

with  the  money  demanded.   Acting  on the  complaint,  a

case was registered and a trap was laid on 4.10.1996 and

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the tainted currency notes were recovered, in the process

thereof,  from  the  possession  of  the  appellant.   On

completion of  the  investigation,   charge-sheet  was   filed

against  the  appellant,  whereafter  the  charges  under

Sections 7 &  13(1)(d)(i) & (ii) read with Section 13(2) of the

Act  were  framed  against  him  to  which  he  pleaded  “not

guilty”.   At  the  trial,  the  prosecution  examined  seven

witnesses  and  also  adduced  documentary  evidence  in

support  of  the  charges.   As  the  complainant-  S.  Jagan

Mohan Reddy had expired prior thereto, he could not be

examined by the prosecution.

4. After  the  closure  of  the  evidence  of  the

prosecution,  the  appellant  was  examined  under  Section

313 Cr.P.C. and was confronted with all the incriminating

materials  brought  on  record.   He,  however,  denied  the

same.

5. The learned trial court, on an elaborate analysis of

the  evidence  available,  convicted  the  appellant  under

Sections 7 and 13(1)(d)(i) & (ii) read with Section 13(2) of

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the Act and sentenced him to undergo R.I. for one year on

each count and to pay fine of Rs. 1000/-, in default   to

suffer S.I. for three months for each offence.  The sentences

of  imprisonment  were,  however,  ordered  to  run

concurrently.

6. As adverted to hereinabove, the High Court in the

appeal  preferred  by  the  appellant,  while  upholding  his

conviction under Section 13(1)(d)(i) & (ii) read with Section

13(2)  of  the Act,  did set  at  naught  his  conviction under

Section  7  of  the  Act.   The  sentence  qua  his  conviction

under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the

Act was, as a corollary, sustained.

7. The learned senior counsel for the appellant has

insistently urged that the prosecution had failed to prove

any  demand  for  the  alleged  illegal  gratification  involved

and,  thus,  the vitally  essential  ingredient  of  the offences

both  under  Sections  7  and  13  of  the  Act  being

conspicuously  absent,  the  appellant  ought  to  have  been

acquitted of the charge on both counts.  The learned senior

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counsel  has  maintained  that  even  assuming  without

admitting that the recovery of the tainted notes from the

appellant had been established, sans the proof of demand

which is a sine qua non for an offence both under Sections

7 and 13 of the Act, the appellant’s conviction as recorded

by  the  High  Court   is  on  the  face  of  the  record

unsustainable in law and on facts.  Without prejudice to

the  above,  learned  senior  counsel  has  asserted  that  the

money shown to have been recovered from the possession

of the appellant was by no means an illegal gratification

demanded by him, but was towards fees for renewal of the

recognition of  the complainant’s  typing institute  together

with  penalty  and  incidental  expenses,  and  thus,  his

conviction under Section 13(1)(d)(i) & (ii)) read with Section

13(2) of the Act  as sustained by the High Court, if allowed

to stand, would result in travesty of justice.  

8. Learned  senior   counsel  for  the   appellant  to

buttress his contentions, placed reliance on the decision of

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this Court in  B. Jayaraj vs. State of Andhra Pradesh

(2014) 13 SCC 55.  

9. Learned counsel for the State, as against this, has

assiduously  argued that  the  evidence  of  the  prosecution

witnesses,  taken  as   a  whole,  demonstrably  proved  the

demand,  receipt  and  recovery  of  the  illegal  gratification

sought for and as such no interference with the appellant’s

conviction is warranted.  According to the learned counsel,

having  regard  to  the  office  held  by  the  appellant  at  the

relevant  point  of  time,  he  was  even  otherwise  not

authorized to receive any deposit  towards the renewal of

recognition   of the complainant’s typing institute and that

the  evidence  adduced  by  the  prosecution  did  prove  the

complicity of the appellant in the offence for which he has

been  charged,  beyond  a  reasonable  doubt.   In

reinforcement of her pleas, learned counsel has drawn our

attention to the relevant excerpts of the evidence on record

more  particularly  that  of  PW1-S.  Udaya  Bhasker  and

PW3-G. Sudhakar.

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10. Learned  counsel  for  the  respondents  sought  to

distinguish  the  decision  rendered  in  B.  Jayaraj (supra)

contending  that  in  the  face  of  persuasive  evidence  of

demand on record, the same is of no avail to the appellant.  

11. The materials on record have been duly traversed

by  us  in  order  to  adequately  appreciate  and  weigh  the

competing contentions. Though dealt with exhaustively by

the  two  courts  below,  having  regard  to  the  profuse

reference to the evidence on record made in the course of

the arguments, we consider it to be apt to advert thereto in

bare  essentials  and  to  the  extent  indispensable.

Admittedly,  the complainant S. Jagan Mohan Reddy, the

then  Principal  of  the  Rama  Typewriting  Institute,

Laxminagar, B. Camp, Kurnool could not be examined as a

witness for the prosecution, as he had expired before the

trial.  To reiterate, in his complaint lodged with the Deputy

Superintendent of Police, Anti Corruption Bureau, Kurnool

Range, Kurnool on 3.10.1996, he alleged that on the same

date, the appellant, who was then the Assistant Director,

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Commissionerate of Technical Education, Hyderabad, had

visited his institute and had pointed out that because of

his omission to file an application for renewal of recognition

thereof for the year 1997, cancellation of recognition would

ensue  resulting  in  loss  of  seniority  of  the  institute.

According to the complainant, situated thus, he requested

for  the  assistance  of  the  appellant  who  assured  that  it

would  be  possible  only  if  he  was  paid  Rs.  1000/-.

According to the complainant, he pleaded his inability to

pay such  amount.  On  this,  the appellant reduced his

demand to Rs. 500/- and instructed him (complainant) to

meet him on 4.10.1996 in Room No. 68, Meenakshi Lodge,

Kurnool along with challan of Rs. 360/-, being Rs. 60 as

renewal  fee  and  Rs.  300  as  penalty.   The  complainant,

being  disinclined  to  pay  the  illegal  gratification  as

demanded,  lodged  a  complaint  with  the  Deputy

Superintendent of Police, Anti Corruption Bureau, Kurnool

and sought action against the appellant.  

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12.  After registering the complaint, the investigating

agency initiated a proceeding for laying a trap on 4.10.1996

at the venue indicated by the appellant.  In the course of

preparatory steps, five currency notes of denomination of

Rs. 100/- were arranged on which phenolphthalein powder

was applied and were handed over to the complainant to be

paid to the appellant on  demand.   PW1-S. Udaya Bhaskar

was  identified  to  accompany  the  complainant  as  an

aspiring owner of a new proposed typewriting institute. The

members of  the trap team  were briefed accordingly and

instructions were given to the complainant to flag a signal

in time for the interception of the appellant after he had

received the tainted notes.  Accordingly,  the complainant

accompanied by PW1-S. Udaya Bhaskar  went to the place

agreed upon i.e. Room No. 68, Meenakshi  Lodge, Kurnool

on 4.10.1996 with the trap team waiting outside for the

signal  to  intervene.    According  to  the  prosecution,  the

complainant  and  PW1-S.  Udaya  Bhaskar   did  meet  the

appellant in  Room No. 68, Meenakshi Lodge, Kurnool and

on reaching the room, the complainant gave one renewal

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application  along  with  the  challan  to  the  appellant  who

enquired as to whether he (complainant) had brought the

amount which he had directed him to bring on the previous

day.   On  this,  the  complainant  took  out Rs. 500/- from

the  pocket  of  his  shirt  on  which  the  phenolphthalein

powder had been applied and handed over the same to the

appellant.  The prosecution version is that the appellant,

accordingly, kept the amount in the pocket of his shirt and

it was then on signal being received by the trap team, he

was intercepted and apprehended with the money accepted

by him.

13. PW1-S. Udaya Bhaskar has stated on oath that at

the relevant point of time, he was the Assistant Engineer in

Panchayat Raj Department, Orvakal and that as planned

by  the  investigating  agency  to  entrap  the  appellant,  he

along  with  the  complainant  had  gone  to  room  No.  68,

Meenakshi  Lodge,  Kurnool  on 4.10.1996 for  meeting the

appellant.   Both  of  them  entered  into  the  room   of

appellant,  whereupon  the  complainant  handed  over  one

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renewal application along with the challan to the appellant.

This witness stated that on this, the appellant enquired as

to whether the complainant had brought the amount which

he had directed him to bring on the previous day.   The

witness  stated  that  the  complainant  then  took  out  the

currency notes amounting to  Rs. 500/- from the pocket of

his shirt as arranged and did hand over the same  to the

complainant, who after counting the same, kept those in

the pocket of his shirt.  The witness also testified, that he

then told the appellant that he too had started a typing

institute and would require a license.   The appellant,  in

reply,  asked  him to  do  the  needful  as  others  had  been

doing.  According to this witness, while he was talking to

the  appellant,  as  previously  arranged,  the  complainant

signalled  the  trap  team,  whereupon  the  appellant  was

apprehended  and  the  currency notes were recovered from

him.   On  verification,  the  said  notes  tallied  with  those

which had been decided to be used in the trap operation.

The fingers of the hands of the appellants, when dipped in

the  sodium  carbonate  solution  also  turned  pink.   The

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pocket of  the shirt   of  the appellant,  as testified by this

witness, also turned pink when rinsed in sodium carbonate

solution.

14. The evidence of PW3-S. Sivaiah Naidu  is to the

effect that he, on 6.8.1996 had made an application to the

Technical Board  for recognition of his institute, whereafter

on 3.10.1996,  the  appellant  in  the  capacity  of  Assistant

Director of Technical Education, inspected his institute and

verified all  records.   According to  this  witness,  when he

enquired  about  the  recognition  certificate,  the  appellant

stated that unless some amount was paid to him way of

gratification, he would not issue the recognition certificate.

The  witness  alleged  that  he  too  was  asked  to  meet  the

appellant  in  Room  No.  68,  Meenakshi  Lodge,Kurnool  at

8.30 P.M.

15. PW7-Iliyase  Sait,  who  at  the  relevant  time  was

posted as Deputy Superintendent of Police, Kurnool Range,

Kurnool, in his evidence narrated in detail the steps taken

to arrange for the trap to nab the appellant,  instructions

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to the members of the trap team, recovery of five currency

notes  amounting  to  Rs.  500/-  smeared  with

phenolphthalein  powder  from  the  possession  of  the

appellant and submission of charge-sheet against him on

completion of the investigation.

16. The  evidence  of  other  witnesses  being  not

essentially  related  to  the  aspect  of  demand,  receipt  and

recovery of  the amount of  illegal  gratification with which

the appellant had been charged, does not call for a detailed

reference.     

17. It  is  expedient  at  this  juncture  to  set  out  the

relevant extracts of Sections 7 (as it stands today) and 13

of the Act under which the appellant had been charged.

“7.  Public  servant  taking  gratification  other than  legal  remuneration  in  respect  of  an official act: Whoever, being, or expecting to be a public  servant,  accepts  or  obtains  or  agrees  to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever,  other  than  legal  remuneration,  as  a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the  exercise  of  his  official  functions,  favour  or disfavour  to  any  person  or  for  rendering  or

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attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of  any  State  or  with  any  local  authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall  be not  less than [three  years]  but  which  may  extend  to  [seven years] and shall also be liable to fine.”

---  ---  --- --- --- --- ---           ---

“13. Criminal misconduct by a public servant  

(1) A public servant is said to commit the offence of criminal misconduct,-  

--- --- --- ---

(d) if he,-

(i) by  corrupt  or  illegal  means,  obtains  for himself or for any other person any valuable thing or pecuniary advantage; or

(ii)  by abusing his position as a public servant, obtains  for  himself  or  for  any other  person any valuable thing or pecuniary advantage;”  

--- --- --- --- ---  

18. This  Court  in  A.  Subair  vs.  State  of  Kerala

(2009)6  SCC  587,  while  dwelling  on  the  purport  of  the

statutory prescription of Sections 7 and 13(1)(d) of the Act

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ruled  that  the  prosecution  has  to  prove  the  charge

thereunder  beyond  reasonable  doubt  like  any  other

criminal offence and that the accused should be considered

to  be  innocent  till  it  is  established  otherwise  by  proper

proof  of  demand  and  acceptance  of  illegal  gratification,

which are vital ingredients necessary to be proved to record

a conviction.

19. In  State of Kerala and another vs. C.P. Rao

(2011) 6 SCC 450, this Court, reiterating its earlier dictum,

vis-à-vis  the same offences,  held  that  mere recovery by

itself, would not prove the charge against the accused and

in absence of any evidence to prove payment of bribe or to

show that the accused had voluntarily accepted the money

knowing it to be bribe, conviction cannot be sustained.  

20. In a recent enunciation by this Court to discern

the imperative pre-requisites of Sections 7 and 13 of the

Act,  it  has  been  underlined  in  B.  Jayaraj (supra)  in

unequivocal terms, that mere possession and recovery of

currency notes from an accused without proof of demand

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would not establish an offence under Sections 7 as well as

13(1)(d)(i)&(ii) of the Act.  It has been propounded that 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  proved.   The  proof  of

demand,  thus,  has  been  held  to  be  an  indispensable

essentiality  and  of  permeating  mandate  for  an  offence

under Sections 7 and 13 of the Act.  Qua Section 20 of the

Act, which permits a presumption as envisaged therein, it

has been held that while it is extendable only to an offence

under Section 7 and not to those under Section 13(1)(d)

(i)&(ii) of the Act,  it is contingent as well on the proof of

acceptance of illegal gratification for doing or forbearing to

do  any  official  act.   Such  proof  of  acceptance  of  illegal

gratification, it was emphasized, could follow only if there

was  proof of demand.  Axiomatically, it was held that in

absence of proof of demand, such legal presumption under

Section 20 of the Act  would also not arise.

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21. The proof of demand of  illegal gratification, thus,

is  the  gravamen of the offence under Sections 7 and 13(1)

(d)(i)&(ii) of the Act and in absence thereof, unmistakably

the charge therefor,  would fail.   Mere acceptance of  any

amount allegedly by way of illegal gratification or recovery

thereof, dehors the proof of demand, ipso facto, would thus

not be sufficient to bring home the charge under these two

sections of the Act.

22. As a corollary, failure of the prosecution to prove

the demand for illegal gratification would be fatal and mere

recovery  of  the  amount  from the  person  accused  of  the

offence under Sections 7 or 13 of the Act would not entail

his conviction thereunder.

23. The sheet anchor of the case of the prosecution is

the evidence, in the facts and circumstances of the case, of

PW1-S. Udaya Bhaskar.  The substance of his testimony,

as has been alluded to hereinabove, would disclose qua the

aspect  of  demand,  that  when the  complainant  did  hand

over  to  the  appellant  the  renewal  application,  the  latter

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enquired   from  the  complainant  as  to  whether  he  had

brought the amount which he directed him to bring on the

previous  day,  whereupon  the  complainant  took  out  Rs.

500/- from the pocket of his shirt and  handed over the

same to the appellant.  Though, a very spirited endeavour

has  been made  by  the  learned  counsel  for  the  State  to

co-relate this statement of PW1- 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 prosecution in

the  instant  case  has  been  able  to  prove  the  factum  of

demand beyond reasonable doubt.  Even if the evidence of

PW1- 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  13(1)(d)(i)&(ii) of the

Act has been proved. True it is, that on the demise of the

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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 PW1-

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 13(1)(d)(i)&(ii) of

the  Act  against  the  appellant  has  been  proved  beyond

reasonable doubt.

24. 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)&(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

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hereinabove qua  Sections 7 and 13(1)(d)(i)&(ii) of the Act,

thus, had been to underscore the indispensability of  the

proof of demand of illegal gratification.   

25. In reiteration of the golden principle which runs

through the  web of  administration of  justice  in  criminal

cases,  this  Court  in  Sujit  Biswas  vs.  State  of  Assam

(2013)12 SCC 406 had held that suspicion, however grave,

cannot  take the place of proof and the prosecution cannot

afford to rest its case  in the realm of “may be” true but has

to upgrade it in the domain of “must be” true in order to

steer clear  of any possible surmise or conjecture.  It was

held,  that  the  Court  must  ensure  that  miscarriage  of

justice is avoided and if  in the facts and circumstances,

two views are plausible, then the benefit of doubt must be

given to the accused.

26. The materials on record when judged on the touch

stone  of   the  legal  principles  adumbrated  hereinabove,

leave  no  manner  of  doubt  that  the  prosecution,  in  the

instant  case,  has  failed  to  prove  unequivocally,   the

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demand  of  illegal  gratification  and,  thus,  we  are

constrained  to  hold  that  it  would  be  wholly  un-safe  to

sustain the conviction of the appellant under Section 13(1)

(d)(i)&(ii) read with Section 13(2)  of the Act as well.  In the

result, the appeal succeeds.  The impugned judgment and

order of the High Court is hereby set-aside.  The appellant

is on bail.   His bail bond stands discharged.    Original

record be sent back immediately.       

……..……………………….CJI.  (H.L. DATTU)

……..……………………..….J.  (V. GOPALA GOWDA)

……..……………………..….J.  (AMITAVA ROY)

NEW DELHI; SEPTEMBER 14, 2015.

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