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REPORTABLE

          IN THE SUPREME COURT OF INDIA           CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1163    OF 2017 (  ARISING OUT OF S.L.P (CRIMINAL) NO. 207 OF 2016  )

MUKHTIAR SINGH (SINCE DECEASED)  THROUGH HIS L.R.                                          …APPELLANT

VERSUS

STATE OF PUNJAB          ....RESPONDENT

J U D G M E N T

AMITAVA ROY, J.

Leave granted.

2. The  appellant,  heir  of  Mukhtiar  Singh (since  deceased)  has

carried  this  appeal  to  this  Court  against  the  affirmation  of  his

conviction  under  Sections  7  and  13(2)  of  the  Prevention  of

Corruption Act, 1988 (for short, hereafter referred to as 'the Act'),

recorded at the first instance by the learned Special Judge, S.A.S.

Nagar  (Mohali)  in  his  judgment  and  order  dated  04.09.2009.

Thereby the predecessor of  the present appellant had been, as a

consequence of his conviction, sentenced to rigorous imprisonment

for one year for the offence under Section 7 and to pay a fine of

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Rs.2,000/-  therefor  and  further  sentenced  to  2  years'  rigorous

imprisonment for the offence under Section 13(2) of the Act along

with fine of Rs.2,000/- with related default sentence.

3. Though this verdict was challenged before the High Court by

the original convict, he, during the pendency of the appeal expired,

whereupon the present appellant got herself substituted with a bid

to purge him of the stigma. She having failed in her endeavour as

the appeal has been dismissed, seeks redress from this Court.

4. We  have  heard  Mr.  O.P.  Bhadani,  learned  counsel  for  the

appellant  and  Ms.  Jaspreet  Gogia,  learned  counsel  for  the

respondent.

5. Sans the unnecessary details, the essence of the prosecution

case is that the predecessor of the appellant, Mukhtiar Singh (also

referred to  hereinafter  as  original  accused)  while  was serving  as

Station House Officer of Police Station, Ajnala was entrusted with

the  investigation  of  the  case  launched  against  Sarabjit  Singh

(complainant) by his (Sarabjit) wife under Sections 406,498A IPC. It

was  alleged  by  the  complainant-Sarabjit  Singh  that  the  original

accused in order to favour him in the investigation demanded and

received bribe of Rs. 3,000/- from him (Sarabjit) and in the process

and at the fag-end of  the probe,  demanded a further amount of

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Rs.2,000/-  as  illegal  gratification  to  file  a  report  of  exoneration.

That the original accused threatened to harass the complainant if

he did not submit to his demand, was also imputed. At this, the

complainant approached the DSP, Vigilance, FS-I Unit – 2 Punjab,

Chandigarh and lodged a complaint disclosing the above facts.

6. The  said  officer  after  recording  the  statement  of  the

complainant took preparatory steps to lay a trap to intercept the

original  accused  and  set  up  a  trap  team  constituting  amongst

others of Inspector Satpal (PW2) and Aman Kumar (PW3).  Currency

notes furnished by the complainant amounting to Rs. 2,000/- were

smeared  with  phenolphthalein  powder  and  handed  over  to  the

complainant  to  be  delivered to  the  original  accused on demand.

Inspector  Satpal  (PW2)  was  nominated  as  a  shadow  witness  to

accompany the complainant so as to be a witness to the possible

transaction.  Subsequent thereto, on the appointed day, the trap

team visited the Ajnala Police Station, whereupon the complainant

and  the  shadow  witness  met  the  original  accused  in  his  room.

Thereafter  the  original  accused  having  enquired  as  to  whether

money  had  been  brought,  the  complainant  handed  over  the

prepared currency notes to the former, who kept it in a card board

box placed on his table.  The prosecution version is that on this, the

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shadow  witness  signalled  the  other  members  of  the  trap  team

waiting outside, who thereafter entered the room, confronted the

original accused with the demand and receipt of the currency notes

whereupon,  he took out the  same from the  card board box and

handed  over  those  to  trap  team.  As  the  fingers  of  the  original

accused  when dipped in the chemical compound prepared for the

purpose  indicated  that  he  had  handled  the  currency  notes,  the

investigating party completed the formalities and after obtaining the

report of the Forensic Science Laboratory, lodged the prosecution

against the original accused on obtaining the necessary sanction

therefor.

7. In support of the charge under Sections 7 and 13(2) of the Act

laid  by  the  prosecution,  which  the  original  accused  denied,  it

examined  several  witnesses  including  the  complainant  Sarabjit

Singh  (PW1),  the  shadow witness  Inspector  Satpal  (PW2),  Aman

Kumar (PW3) and Paramjit Singh Khaira (PW5).  In course of  his

examination under Section 313 Cr.P.C., the original accused denied

the  correctness  of  the  incriminating  evidence  adduced  by  the

prosecution and pleaded to be innocent. He categorically denied to

have  either  made  any  demand  for  illegal  gratification  or  having

received  any  bribe  from  the  complainant  and  alleged  that  the

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complainant was a relative of Superintendent of Police, Mukhwinder

Singh Cheena, who constantly pressurised him (original accused)

not to file charge-sheet in the case lodged against the complainant

and that as he (original accused) did not succumb thereto, he was

falsely implicated in the case through Sarabjit. The original accused

also  examined  Lakhwinder  Singh  as  a  defence  witness  to

demonstrate  that  the  prosecution  case  of  demand  and  recovery

through a trap drill was a myth and that instead on the basis of the

stratagem  between  Sarabjit  and  Superintendent  of  Police,

Mukhwinder Singh Cheena, he was forcibly lifted from outside the

Ajnala Police Station and embroiled by fabricating records.

8. The Trial Court however on the basis of the evidence on record

held the charge against the original accused to be proved and as

referred to hereinabove, the High Court by the impugned order, has

sustained the conviction and sentence so recorded by it.

9. As the impugned judgment would reveal, the High Court while

noting that the original accused at the relevant time was in-charge

of  the  investigation  of  the  case  under  Sections  406,498A  IPC

initiated by the wife of the complainant against him, proceeded on

the  pre-supposition  that  as  both  the  original  accused  and  the

complainant  belonged  to  the  police  force,  there  was  a  remote

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possibility  of  a  false  complaint  being  lodged.  It  held  that  the

demand of Rs. 2,000/- and the receipt thereof had been established

by the prosecution and there was no reason for the prosecution or

its witnesses to lie  against the original  accused.  The High Court

however  recorded  that  there  was  no  direct  demand  of  illegal

gratification by the original accused from the complainant in the

presence of the shadow witness at the police station, but the query

made by him (original accused) of the money being brought or not

did amount to such demand. In addition, the receipt of the currency

notes of  Rs.  2,000/- which was recovered by the trap team, did

substantiate the accusation of demand as well. The High Court held

the view that the imputation of false implication at the instance of

the Superintendent of Police,  Mukhwinder Singh Cheena, as made

by the original accused in his 313 Cr.P.C. statement, in absence of

any evidence, did not merit acceptance. To reiterate, the High Court

thus affirmed conviction and sentence awarded by the Trial Court.

10. The learned Counsel for the appellant has strenuously urged

that the evidence on record is visibly deficient to prove the demand,

receipt and recovery of any amount of illegal gratification as alleged

and thus as the indispensable ingredients of the offence with which

the original accused had been charged, have remained unproved,

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the conviction and sentence is patently untenable and if allowed to

stand  would  result  in  gross  travesty  of  justice.  Without  in  any

manner  conceding  to  the  charge  of  receipt  or  recovery  of  the

amount  of  Rs.2,000/-  as  per  the  prosecution  case,  it  has  been

alleged that in absence of any proof of demand therefor, the same is

wholly inconsequential qua the prescriptions of Sections 7 and 13

of the Act.  The prosecution having failed to establish any demand

for bribe as alleged, no presumption under Section 20 of the Act is

also available to further the charge,  he urged.  To buttress these

pleas, reliance has been placed on the decision of this Court in P.

Satyanarayana Murthy vs. District Inspector of Police, State

of Andhra Pradesh and Another1.

11. As against this, the learned Counsel for the respondent has

submitted that the evidence adduced by the prosecution is cogent

and convincing and in the face of the concurrent findings of the two

two  courts  below  holding  that  the  charge  against  the  original

accused had been established, no interference is warranted.  She

has  further asserted that not only the essential ingredients of the

offence under Sections 7, 13(2) of the Act have been amply proved

by the prosecution, the view taken by the Trial Court and affirmed

by the High Court finds endorsement in the pronouncements of this

1 (2015) 10 SCC 152

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Court in  Somabhai Gopalbhai Patel vs. State of Gujarat2 and

Mukhtiar Singh vs. State of Punjab3.

12. The contrasting arguments and the evidence on record to the

extent essential and relevant have been analysed.

13. Before averting to the evidence, apt it would be to refer to the

provisions of  the  Act  whereunder  the  original  accused 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  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 extent to seven years and shall also be liable to

2 (2014) 5 SCC 103 3 (2016) 11 SCC 357

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fine.

13.  Criminal  misconduct  by  a  public servant – (1) A public servant is said to commit  the  offence  of  criminal misconduct, - ….. (2)...............”

14. The  indispensability  of  the  proof  of  demand  and  illegal

gratification in establishing a charge under Sections 7 and 13 of the

Act, has by now engaged the attention of this Court on umpteen

occasions.  In  A.  Subair  vs.  State  of  Kerala4,  this  Court

propounded that the prosecution in order to prove the charge under

the above provisions has to establish by proper proof, the demand

and  acceptance  of  the  illegal  gratification  and  till  that  is

accomplished,  the accused should be considered to be innocent.

Carrying  this  enunciation  further,  it  was  exposited  in  State  of

Kerala vs. C.P. Rao5 that mere recovery by itself of the amount

said to have been paid by way of illegal gratification 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.

4 (2009) 6 SCC 587 5 (2011) 6 SCC 450

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15. In P. Satyanarayana Murthy (supra), this Court took note of

its verdict in  B. Jayaraj vs. State of A.P.6 underlining that mere

possession and recovery of currency notes from an accused without

proof of demand would not establish an offence under Section 7 as

well as Section 13(1)(d)(i) and (ii) of the Act.  It was recounted as

well  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.   Not  only  the  proof  of

demand thus was held to be an indispensable essentiality and an

inflexible statutory mandate for an offence under Sections 7 and 13

of the Act, it was held as well qua Section 20 of the Act, that any

presumption thereunder would arise only on such proof of demand.

This Court thus in P. Satyanarayana Murthy (supra) on a survey

of its earlier decisions on the pre-requisites of Sections 7 and 13

and the proof thereof summed up its conclusions as hereunder:

“23. The proof of demand of illegal gratification, thus,  is  the  gravamen  of  the  offence  under Sections 7 and 13(1)(d)(i) and (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

6 (2014) 13 SCC 55

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two sections of the Act.  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 and 13 of  the  Act  would  not  entail  his  conviction thereunder.”

(emphasis supplied)

16. The textual  facts in Somabhai Gopalbhai Patel (supra) and

Mukhtiar Singh (supra)  and the quality of evidence adduced by

the  prosecution  are  clearly distinguishable   and are thus of  no

avail to the prosecution as would be discernible from the analysis

of the materials on record.

17. It  is  in  the  above  adumbrated  legal  enjoinment,  that  the

evidence  on  record  has  to  be  scrutinised.  Having  regard  to  the

gravamen of the charge and the imperatives of  demand of illegal

gratification,  the  receipt  and  recovery  thereof,  the  evidence  on

record relatable thereto only need be noticed.

18. Sarabjit  Singh  (PW1),  the  complainant  stated  that  on

01.06.2005, he was posted with Traffic Police at Moga and that at

the instance of his wife, a case under Section 498A IPC had been

registered against him in Ajnala Police Station. He stated that the

original accused, who was a sub-inspector of Ajnala Police Station

was conducting the investigation of the case, agreed to allow him to

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participate in the investigation on payment of Rs. 3,000/-, which

was accordingly paid.  The witness alleged that the original accused

made a further demand of Rs.3,000/-, whereafter negotiation was

scaled down to Rs.2,000/-, so as to favour the complainant in the

case, with the threat that if the demand was not met, he would see

that  he  is  harassed  in  connection  therewith.  According  to  this

witness, he being disinclined to advance further illegal gratification,

lodged a complaint with DSP Paramjit Singh Khaira, who recorded

his  statement  and requisitioned from him currency  notes  of  Rs.

2,000/- comprised of three notes of Rs.500 and five notes of Rs.100

each, treated those with phenolphthalein powder and constituted a

trap  team  with  Inspector  Satpal  as  shadow  witness  and  Aman

Kumar Mani and Shashi Kant. The witness further stated that the

police  party  thereafter  visited  Ajnala  Police  Station  and  he  and

Inspector Satpal met the original accused in his room and on being

asked as to whether the money had been brought or not, he handed

over Rs.2,000/- as prepared to the original accused, who received

the same and after counting the money kept in a card board box.

At this, the shadow witness signalled the waiting members of the

raiding  party  along  with  the  DSP  Paramjit  Singh  Khaira,  who

entered the room, intercepted the original accused and recovered

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the currency notes on being handed over by him on demand. The

witness also stated about the exercise undertaken by dipping the

hands of  the  original  accused in the  liquid  compound prepared,

which turned pink to indicate that he had handled the currency

notes  treated with phenolphthalein.  The witness  also  proved the

currency notes as Ex. P1 to P8.

19. In his cross-examination, the complainant admitted that  M.S.

Cheena, the then Superintendent of Police, Vigilance was posted as

S.S.P, Moga but denied that he was related to him. He could not

recall the date on which he had paid Rs.3,000/- for the first time to

the  original  accused  and  admitted  of  not  having  made  any

complaint in connection therewith. He conceded that one Santosh

Singh Lamberdar of  his  village was with him when he paid this

amount but the said person had not been produced as a witness

either in the investigation or at the trial.  He admitted as well that

the  card  board  box  containing  the  money  was  not  seized.   He

however denied the suggestion that he had been pressurising the

original accused to conclude the investigation in his favour and that

he had implicated him falsely. He also denied the suggestion that

there  was  neither  any  demand  for  illegal  gratification  by  the

accused nor was any sum as alleged accepted by or recovered from

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him.

20.  Inspector Satpal (PW2), who was the shadow witness, after

reiterating  the  statement  of  the  complainant  with  regard  to  the

pre-trap proceedings, stated that he along with the complainant on

that day met the original accused and followed to his quarter in the

building  of  the  police  station  whereafter  the  original  accused

enquired  of  the  complainant  as  to  whether  he  had  brought  the

money,  on  which,  the  latter  handed  over  three  currency  notes

denomination of Rs.500 and five currency notes of Rs.100 each to

him and that he kept the same in a card board box lying near him.

The witness stated that he then gave a signal to the other members

of the raiding party including the D.S.P. (Vigilance) who entered the

room and undertook the steps pertaining to recovery and seizure as

narrated by the complainant.

21. In cross-examination, this witness did not refer to the quarter

of  the  original  accused in the  building of  the  police  station and

stated that both he and the complainant met him in his room in the

police station. He however confirmed that the card board box was

lying on the table of the accused which was not seized by the police.

He denied the suggestion that he was not a member of the raiding

party and that he had signed the memo while sitting in his office.

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22.  Aman Kumar Mani (PW3) is a witness to the steps taken by

the raiding party after it had entered the room in response to the

signal given by the shadow witness.  According to him, on being

enquired,  the  original  accused  took  out  the  currency  notes  of

Rs.2,000/- from the box lying in his room and that the same tallied

with those set out in the memo prepared by the police. He proved as

well the currency notes as Ex.P1 to P8.

23.   Superintendent  of  Police,  Paramjit  Singh  Khaira  (PW5),

deposed that he was posted as DSP (Vigilance) FS-I, Unit-2, Punjab,

Chandigarh  on  01.06.2005.   He  stated  that  on  that  day,  he

recorded  the  statement  of  the  complainant  pertaining  to  the

demand of illegal gratification made by the original accused.  He

thereafter constituted a trap team as above and treated currency

notes totalling Rs.2,000/- for the exercise and led the party to the

Ajnala Police Station.  The witness affirmed that Inspector Satpal

was  nominated  as  the  shadow  witness  to  accompany  the

complainant  to  witness  the  actual  transaction  and  track  the

accompanying conversation and to give signal to the trap team at

the  appropriate  point  of  time.  This  witness  however  stated  in

categorical  terms  that  the  complainant  and  the  shadow witness

went  to  the  house  of  the  original  accused  whereas  the  other

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members  of  the  trap  team  waited  outside  and  when  Inspector

Satpal flagged his signal, the house of the accused situated near

Ajnala Police Station was raided.  He stated that the police party

intercepted  the  accused  and  on  being  asked,  he  took  out  the

currency notes of Rs.2,000/- from the card board box placed on the

nearby table  which tallied with those mentioned in the pre-trap,

prepared memo and  seized the currency notes. That the fingers of

the original  accused were dipped in the liquid compound, which

turned pink was also stated.

24. In  cross-examination,  this  witness  admitted  that  Mr.

Mukhwinder  Singh  Cheena  was  at  the  relevant  time  posted  as

Superintendent of  Police,  Mohali  and that  he  was his  in-charge,

then. To the suggestions made, the witness stated that he had no

knowledge that the complainant was related to Mukhwinder Singh

Cheena  and  that  the  latter  had  been  pressurising  the  original

accused not to pursue the case against the complainant.  He also

denied the suggestion that the Mr. Cheena was the brain behind

the  raid  and  the  registration  of  the  case  against  the  original

accused.

25. It would thus be patent from the materials on record that the

evidence with regard to the demand of illegal gratification either of

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Rs.3,000/- which had been paid or of Rs.2,000/- as made on the

day  of  trap  operation  is  wholly  inadequate  to  comply  with  the

pre-requisites to constitute the ingredients of the offence with which

the original accused had been charged. Not only the date or time of

first demand/payment is not forthcoming and the allegation to that

effect is rather omnibus, vague and sweeping, even the person in

whose presence Rs.3,000/- at the first instance is alleged to have

been  paid  i.e.  Santosh  Singh  Lamberdar,  has  neither  been

produced in the investigation nor at the trial. In other words, the

bald allegation of the complainant with regard to the demand and

payment of Rs.3,000/- as well  as the demand of Rs.2,000/- has

remained uncorroborated. Further to reiterate, his statement to this

effect lacks in material facts and particulars and per se cannot form

the foundation of a decisive conclusion that such demand in fact

had been made by the original accused. Viewed in this perspective,

the statement of complainant and the Inspector Satpal, the shadow

witness in isolation that the original accused had enquired as to

whether  money  had  been  brought  or  not,  can  by  no  means

constitute demand as enjoined in law as an ingredient of the offence

levelled against the original accused. Such a stray query ipso facto

in absence of any other cogent and persuasive evidence on record

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cannot  amount  to  a  demand to  be  a  constituent  of  the  offence

under Section 7 or 13 of the Act.

26. In  addition  thereto,  not  only  the  prosecution  version  of

demand and acceptance of illegal gratification in the police station

seems to be unusual, contradictions of the witnesses, PW-1, PW-2

and PW-5 with regard to the location of the transaction relating to

Rs.2,000/- also renders it doubtful. It is also noticeably unusual

that  the  currency  notes  when  allegedly  handed  over  by  the

complainant  to  the  original  accused,  the  same  instead  of  being

keenly kept with him, were placed casually in the card board box

placed  on  his  table.  Though  the  original  accused,  apart  from

imputing his false implication at the instance of Superintendent of

Police  Cheena, said to be the relative of the complainant could not

adduce any evidence to consolidate the same, the fact remains that

this officer at the relevant point of time was indeed Superintendent

of Police at Mohali and was the superior of PW5 who led the trap

operation.

27. On  an  overall  appreciation  of  evidence  on  record,  in  the

context  of  the  elucidation  of  law  pertaining  to  proof  of  the

ingredients  of  Sections  7  and  13  of  the  Act  as  adverted  to

herein-above, we are of the unhesitant opinion that the prosecution

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has failed to prove the charge levelled against the original accused

beyond all reasonable doubt. The charge against him therefore fails.

The Trial Court as well as the High Court had failed to analyse the

factual and legal aspects as involved in their true perspectives and

resultantly  the  determinations  made  are  not  sustainable.  The

impugned  judgment  and  order  of  the  High  Court  affirming  the

conviction and sentence recorded by the Trial Court is set aside.

The appeal is allowed.

.............................................J.  (ARUN MISHRA)

         …...........................................J. (AMITAVA ROY)

NEW DELHI; JULY 14, 2017.