26 May 2020


Judgments

Supreme Court

Mukhtiar Singh (since deceased) through his L.R. v. State of Punjab

MANU/SC/0809/2017

14.07.2017

Criminal

Mere possession and recovery of currency notes from an Accused without proof of demand would not establish an offence

Appellant, heir of Mukhtiar Singh (since deceased) has carried this appeal to present Court against affirmation of his conviction under Sections 7 and 13(2) of Prevention of Corruption Act, 1988, recorded at first instance by Special Judge, in his judgment. Thereby, predecessor of present Appellant had been, as a consequence of his conviction, sentenced to rigorous imprisonment for one year for offence under Section 7 and to pay a fine of Rs. 2,000/- thereof and further sentenced to 2 years' rigorous imprisonment for offence under Section 13(2) of Act along with fine of Rs. 2,000/- with related default sentence. Appellant has strenuously urged that, evidence on record is visibly deficient to prove demand, receipt and recovery of any amount of illegal gratification as alleged and thus, as indispensable ingredients of offence with which the original Accused had been charged, have remained unproved, conviction and sentence is patently untenable.

In A. Subair v. State of Kerala, this Court propounded that, prosecution in order to prove charge under above provisions has to establish by proper proof, demand and acceptance of illegal gratification and till that is accomplished, Accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala v. C.P. Rao that, mere recovery by itself of amount said to have been paid by way of illegal gratification would not prove charge against the Accused and in absence of any evidence to prove payment of bribe or to show that, Accused had voluntarily accepted money knowing it to be bribe, conviction cannot be sustained.

In P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr., this Court took note of its verdict in B. Jayaraj v. State of A.P. 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 Act. It was recounted as well that, in absence of any proof of demand for illegal gratification, 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 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 Act, it was held as well qua Section 20 of Act, that any presumption thereunder would arise only on such proof of demand.

This Court thus, in P. Satyanarayana Murthy on a survey of its earlier decisions on pre-requisites of Sections 7 and 13 and proof thereof, summed up its conclusions that, proof of demand of illegal gratification, thus, is gravamen of offence under Sections 7 and 13(1)(d)(i) and (ii) of Act and in absence thereof, unmistakably charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors proof of demand, ipso facto, would thus not be sufficient to bring home charge under these two Sections of Act. As a corollary, failure of prosecution to prove demand for illegal gratification would be fatal and mere recovery of amount from person Accused of offence under Sections 7 and 13 of Act would not entail his conviction thereunder.

Evidence with regard to demand of illegal gratification either of Rs. 3,000/- which had been paid or of Rs. 2,000/- as made on day of trap operation is inadequate to comply with pre-requisites to constitute ingredients of offence with which original Accused had been charged. Not only date or time of first demand/payment is not forthcoming and allegation to that effect is rather omnibus, vague and sweeping, even person in whose presence Rs. 3,000/- at first instance is alleged to have been paid, has neither been produced in investigation nor at trial.

Bald allegation of complainant with regard to demand and payment of Rs. 3,000/- as well as demand of Rs. 2,000/- remained uncorroborated. His statement to this effect lacks in material facts and particulars and per se cannot form foundation of a decisive conclusion that such demand in fact had been made by original accused. Viewed in this perspective, statement of complainant and Inspector Satpal, shadow witness in isolation that, 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 cannot amount to a demand to be a constituent of offence under Section 7 or 13 of Act.

Not only prosecution version of demand and acceptance of illegal gratification in police station seems to be unusual, contradictions of witnesses, with regard to location of transaction relating to Rs. 2,000/- also renders it doubtful. It is also noticeably unusual that, currency notes, when allegedly handed over by complainant to original accused, same instead of being keenly kept with him, were placed casually in card board box placed on his table. Though, original accused, apart from imputing his false implication at instance of Superintendent of Police Cheena, said to be relative of complainant could not adduce any evidence to consolidate the same, fact remains that, this officer at relevant point of time was indeed Superintendent of Police at Mohali and was superior of PW5 who led the trap operation.

Supreme Court is of opinion that, prosecution has failed to prove charge levelled against original Accused beyond all reasonable doubt. Charge against him therefore fails. Trial Court as well as High Court had failed to analyse factual and legal aspects as involved in their true perspectives and resultantly determinations made are not sustainable. Impugned judgment and order of High Court affirming conviction and sentence recorded by trial Court is set aside.

Relevant

A. Subair v. State of Kerala MANU/SC/0890/2009
: (2009) 6 SCC 587, State of Kerala v. C.P. Rao MANU/SC/0678/2011
: (2011) 6 SCC 450, P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. MANU/SC/1012/2015
: (2015) 10 SCC 152 , B. Jayaraj v. State of A.P. MANU/SC/0245/2014
: (2014) 13 SCC 55

Tags : Illegal gratification Proof Conviction

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