N.SUNKANNA Vs STATE OF A.P.
Bench: M.Y. EQBAL,C. NAGAPPAN
Case number: Crl.A. No.-001355-001355 / 2015
Diary number: 7738 / 2011
Advocates: GUNTUR PRABHAKAR Vs
D. MAHESH BABU
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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