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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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