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                                    NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1578 OF 2011

M.R. Purushotham           …     Appellant  

versus

State of Karnataka                …    Respondent

J U D G M E N T

C. NAGAPPAN, J.

1. This appeal is directed against the judgment dated  

4.1.2011  passed  by  the  High  Court  of  Karnataka  at  

Bangalore in Criminal Appeal no.1130 of 2007 reversing  

the  judgment  of  acquittal  dated  8.12.2006  in  Special  

Case  no.36  of  2001  passed  by  the  Principal  Special  

Judge,  Mandya.   The  High  Court  in  the  impugned  

judgment found the appellant/accused not guilty of the  

offence under Section 7 of the Prevention of Corruption  

Act, 1988 (hereinafter referred as “the Act”) but guilty of  

offences under Section 13(1)(d) read with Section 13(2)  

of  the  Act  and  sentenced  him  to  undergo  simple  

imprisonment  for  one  year  and  to  pay  a  fine  of  

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Rs.5000/-, in default to undergo simple imprisonment for  

a period of three months.

2. The case of the prosecution in brief is as follows :  

The appellant/accused was working as Second Division  

Surveyor  in  the  office  of  Assistant  Director  of  Land  

Records, Nagamangala and on 18.2.2000 he demanded  

an illegal gratification of Rs.500/- from PW1 Ramesh for  

issuance of survey sketch pertaining to Survey no.255 of  

Hullenahalli village and it is further alleged that though  

the accused had surveyed the land on the application of  

the complainant he was postponing issuance of survey  

sketch, to force PW1 Ramesh to pay bribe.  PW1 Ramesh  

lodged Exh.P1 complaint  on 18.2.2000 with Lokayukta  

Police on which a case came to be registered in Crime  

no.1/2000 on the file of Mandya Lokayukta Police Station  

for the alleged offences under Sections 7, 13(1)(d) read  

with Section 13(2) of the Act.  A trap was organized and  

PW2  Sridhar  and  PW3  Kumaraswamy,  Government  

servants,  were  directed  to  be  present  as  panch  

witnesses.  PW1 Ramesh produced a sum of Rs.500/- i.e.  

five currency notes of Rs.100/- each and the numbers of  

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the said currency notes were recorded in the presence of  

panch  witnesses  and the  currency  notes  got  smeared  

with phenolphthalein powder.  The complainant Ramesh  

took  the  powder  smeared  notes  and went  along  with  

PW3  Kumaraswamy  to  the  house  of  the  

appellant/accused.   PW2  Sridhar  and  PW4  Inspector  

Santosh  Kumar  stood  outside  the  said  house.   The  

accused was watching T.V. inside the room and on seeing  

them,  he  asked  PW1  Ramesh  as  to  whether  he  has  

brought what he had asked and PW1 Ramesh answered  

yes and gave the currency notes of Rs.500/- and accused  

took them by his right hand and kept the same on his  

table and directed PW1 Ramesh to come on Monday for  

obtaining copy of  the Re-Survey.   They came out  and  

PW1  Ramesh  gave  the  signal,  immediately  PW4  

Inspector Santosh Kumar along with PW2 Sridhar went  

inside the house and in the solution of clean water and  

sodium carbonate the right hand fingers of the accused  

was immersed upon which it turned into light pink color  

and on verification the numbers of the currency notes  

which  were  lying  on  the  table  were  tallied  with  the  

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numbers of the notes written in Exh.P2 Mahazar.  All the  

formalities were completed and after obtaining sanction  

charge sheet came to be filed against accused.

3.  The Trial Court framed charges under Sections 7,  

13(1)(d)  read  with  Section  13(2)  of  the  Act  and  the  

accused pleaded not guilty.  The prosecution examined  

four witnesses and marked Exh.P1 to P10 and M.Os. 1 to  

10.  The Trial Court held that the prosecution has failed  

to prove the charges against the accused and acquitted  

him.  The State preferred appeal and the High Court in  

the impugned judgment held that  the prosecution has  

failed to prove the offence under Section 7 of the Act  

and  at  the  same  time  it  proved  the  commission  of  

offence  under  Section  13(1)(d)  by  the  accused  and  

consequently set aside the judgment of acquittal for said  

offences  and  convicted  the  appellant/accused  for  the  

offence  punishable  under  Section  13(1)(d)  read  with  

Section 13(2) of  the Act  and sentenced him as stated  

above.   The  said  judgment  is  under  challenge in  this  

appeal.

4. We  heard  Ms.  Kiran  Suri,  learned  senior  counsel  

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appearing  for  the  appellant  and  Mr.  V.N.  Raghupathy,  

learned counsel appearing for the respondent State.

5.  PW1 Ramesh, the complainant did not support the  

prosecution case.  He disowned making the complaint in  

Exh.P1 and stated in  his  examination-in-chief  that  the  

accused had not demanded anything from him and he  

did not know what is written in Exh.P1 and the police  

have not recorded his statement in respect to this case.  

He  was,  therefore,  declared  hostile.   However,  PW3  

Kumaraswamy,  panch  witness  has  testified  that  after  

being summoned by PW4 Inspector Santosh Kumar on  

18.2.2000, the contents of Exh.P1 were explained to him  

in the presence of the complainant and he accompanied  

the complainant to the house of the accused, wherein,  

the complainant gave the sum of Rs.500/- to the accused  

as illegal gratification.  It is on the aforesaid basis that  

the liability of appellant/accused for commission of the  

offences alleged was held to be proved, notwithstanding  

the  fact  that  in  his  evidence  the  complainant  PW1  

Ramesh had not supported the prosecution case.

6. In such type of cases the prosecution has to prove  

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that there was a demand and there was acceptance of  

illegal gratification by the accused.  As already seen the  

complainant  PW1  Ramesh  did  not  support  the  

prosecution case insofar as demand by the accused is  

concerned.   No  other  evidence  was  adduced  by  the  

prosecution to prove the demand made by the accused  

with the complainant.  In this context the recent decision  

of a three Judge bench of this Court in  B. Jayaraj  vs.  

State of Andhra Pradesh reported in 2014(4) Scale 81  

is relevant and it is held as follows :

“8.  In the present case, the complainant  did not support the prosecution case in so far  as demand by the accused is concerned.  The  prosecution  has  not  examined  any  other  witness, present at the time when the money  was allegedly handed over to the accused by  the complainant, to prove that the same was  pursuant to any demand made by the accused.  When the  complainant  himself  had  disowned  what  he  had  stated  in  the  initial  complaint  (Exbt.P-11) before LW-9, and there is no other  evidence to prove that the accused had made  any  demand,  the  evidence  of  PW-1  and  the  contents of Exhibit P-11 cannot be relied upon  to  come  to  the  conclusion  that  the  above  material  furnishes  proof  of  the  demand  allegedly  made  by  the  accused.   We  are,  therefore, inclined to hold that the learned trial  court as well as the High Court was not correct  in holding the demand alleged to be made by  the  accused  as  proved.   The  only  other  

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material available is the recovery of the tainted  currency  notes  from  the  possession  of  the  accused.  In fact such possession is admitted  by the accused himself.  Mere possession and  recovery  of  the  currency  notes  from  the  accused without proof of demand will not bring  home the offence under Section 7.  The above  also will be conclusive in so far as the offence  under Section 13(1)(d)(i)(ii) 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.”   

The above decision is squarely applicable to the facts of  

the  present  case.   When  PW1  Ramesh  himself  had  

disowned what he has stated in his initial complaint in  

Exh.P1 before PW4 Inspector Santosh Kumar and there is  

no other evidence to prove that the accused had made  

any demand,  the evidence of  PW3 Kumaraswamy and  

the contents of Exh.P1 complaint cannot be relied upon  

to  conclude  that  the  said  material  furnishes  proof  of  

demand allegedly made by the accused.  The High Court  

was  not  correct  in  holding  the  demand alleged  to  be  

made by the accused as proved.  Mere possession and  

recovery of the currency notes from the accused without  

proof of demand will not bring home the offence under  

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Section  13(1)(d)  of  the  Act  and  the  conviction  and  

sentence imposed on the appellant are liable to be set  

aside.

7. For the aforesaid reasons the appeal is allowed and  

the  conviction  and  sentence  imposed  on  the  

appellant/accused  under  Section  13(1)(d)  read  with  

Section 13(2) of the Act are set aside and he is acquitted  

of  the  charges.   Bail  bond,  if  any  furnished  by  the  

appellant, be released.

…….…………………...J. (Madan B. Lokur)

                                               .…………………………J. (C. Nagappan)

New Delhi; September 24, 2014

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