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.
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
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 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 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 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.
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, 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.
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 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 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 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 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 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,-
by corrupt or illegal means, obtains for himself or for any other person
any valuable thing or pecuniary advantage; or
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 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 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.
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 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 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 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
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.
