NEERAJ DUTTA versus STATE (GOVT. OF N.C.T. OF DELHI) on 17 March 2023

NEERAJ DUTTA

v.

STATE (GOVT. OF N.C.T. OF DELHI)

(Criminal Appeal No. 1669 of 2009)

MARCH 17, 2023

[ABHAY S. OKA AND RAJESH BINDAL, JJ.]

Prevention of Corruption Act, 1988 : ss. 7, 13(1)(d), 13(2) –Proof of demand of illegal gratification – Prosecution case that atrap was laid and the appellant-Electricity Inspector came with theco-accused and demanded the documents and bribe of which was paid by the complainant – Special Court holding thatthere was sufficient circumstantial evidence on record to prove theguilt of the appellant, convicted her for the offence punishable u/ss. 7 and 13(i)(d)(i) and (ii) rw 13(2) – High Court upheld the same– On appeal, held : Apart from the evidence of PW-5-shadow witness,there is no other evidence that is pressed into service by theprosecution for proving the demand by the appellant – Even takingthe statements of PW-5 in the examination-in-chief as correct, it isimpossible to even infer that the demand of Rs.10,000/- was madeby the appellant by way of gratification – Every demand made forpayment of money is not a demand for gratification – It has to besomething more than mere demand for money – On facts, nocircumstances brought on record which would prove the demandfor gratification – Thus, the ingredients of the offence u/s. 7 notestablished and consequently, the offence u/s. 13(1)(d) not attracted– Judgment passed by the courts below set aside.

ss. 7, 13(1)(d), 13(2) – Illegal gratification – Demand andacceptance of – Modes of proof – Held: In the absence of directevidence, the demand and/or acceptance can always be proved byother evidence such as circumstantial evidence.

Allowing the appeal, the Court

HELD: 1.1 The proof of demand within the meaning ofSection 7 cannot be a simpliciter demand for money but it has tobe a demand of gratification other than legal remuneration. Allthat PW-5 says is when the appellant visited the shop of the

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Acomplainant, she asked the complainant to give papers regardingthe electricity meter and Rs.10,000/- to her by telling him thatshe was in a hurry. This is not a case where a specific demand ofgratification for providing electricity meter was made by theappellant to the complainant in the presence of the shadowwitness. PW-5 has not stated that there was any discussion in hisBpresence between the appellant and the complainant on the basisof which an inference could have been drawn that there was ademand made for gratification by the appellant. The witness hadno knowledge about what transpired between the complainantand the appellant earlier. PW-5 had admittedly no personalCknowledge about the purpose for which the cash was allegedlyhanded over by the complainant to the appellant. [Para 16][1011-C-F]

1.2. As per the version of the appellant in her statementunder Section 313 of the Code of Criminal Procedure, 1973, onD17th April 2000, she was working as an LDC in DVB office. Onthat day, she was busy with her official duty in a collection driveorganized by the department to collect dues from the consumers.Her explanation is that the complainant was her neighbour andhe wanted her assistance to deposit electricity charges. She statedthat earlier, she had a transaction of sale and purchase of a carEthrough the complainant. She has also stated that the complainantwas a history-sheeter and there were three First InformationReports (FIRs) registered against him. In this context, PW-5was questioned in the cross-examination. PW-5 did not confirmthe correctness of the suggestion but stated that he was not in aFposition to deny the same. In fact, PW-7, the investigation officer,deposed that cash of Rs.71,900/– was found in the appellant’scar. This lends support to the defence that there was a recoverydrive conducted by the appellant. Apart from the evidence ofPW-5, there is no other evidence that is pressed into service by

the prosecution for proving the demand by the appellant. EvenGtaking the statements of PW-5 in the examination-in-chief ascorrect, it is impossible to even infer that the demand ofRs.10,000/- was made by the appellant by way of gratification.Every demand made for payment of money is not a demand forgratification. It has to be something more than mere demand forHmoney. [Para 17][1011-F-H; 1012-A, D-E]

1.3 In the complaint filed by the deceased complainant on17th April 2000, in the form of his statement recorded by theAnti- Corruption Bureau, he has stated that pursuant to theapplication dated 6th May 1996, a meter was installed in his shopand after a few months, he found that the meter was removed.However, the Special Court has observed in paragraph 19 of theimpugned judgment that a complaint regarding a stolen electricitymeter was registered at the instance of the complainant on 25thApril 2000. Thus, the grievance regarding stolen meter was madeby the complainant 8 days after the alleged demand for bribe. Infact, PW-7 admitted that the complainant did not produce a copyof the application made by him for providing electricity meter.PW-7 further stated that the complainant did not clearly tell himthat he had given such application. In absence of proof of makingsuch application, the prosecution’s case regarding demand ofbribe for installing new electricity meter becomes doubtful.Moreover, till 24th April 2000, the complainant did not registera complaint regarding commission of offence. This makes theprosecution’s case regarding the demand of gratification on 17thApril 2000 for installing a new electricity meter extremelydoubtful. [Para 18][1012-F-H; 1013-A-B]

1.4 There are no circumstances brought on record whichwould prove the demand for gratification. Therefore, theingredients of the offence under Section 7 of the PC Act were notestablished and consequently, the offence under Section 13(1)(d)will not be attracted. The impugned judgment and the judgmentof the Special Court is set aside as also the conviction andsentence of the appellant. [Paras 19, 20][1013-B-C]

Neeraj Dutta v State (Govt of NCT of Delhi) 2022SCCOnline SC 1724 – followed.

B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC55 : [2014] 4 SCR 554; P. Satyanarayana Murthy v.District Inspector of Police, State of Andhra Pradesh& Anr. (2015) 10 SCC 152; M. Narsinga Rao v. Stateof A.P. (2001) 1 SCC 691 : [2000] 5 Suppl. SCR 584;N. Vijayakumar v. State of Tamil Nadu (2021) 3 SCC687 – referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1669 of 2009.

From the Judgment and Order dated 02.04.2009 of he High Courtof Delhi at New Delhi in CRLA No. 04 of 2007.C

S. Nagamuthu, Sr.Adv., Mr. Satinder S. Gulati, Raj KishorChoudhary, Advs. for the Appellant.

Ms. Aishwarya Bhati, Jayant K. Sud, A.S.Gs., Shreekant NeelappaTerdal, Ms. Snidha Mehra, Ms. Rukhmini Bobde, Sanjay Kr. Tyagi, AditDKhorana, Shubranshu Padhi, Udai Khanna, Ms. Poornima Singh,Ms. Manisha Chava, Ms. B.L.N.Shivani, Ms. Shivika Mehra, Advs. forthe Respondent.

The Judgment of the Court was delivered by ABHAY S. OKA, J.E

FACTUAL ASPECTS

1. The appellant was convicted by the Special Judge, Delhi forthe offences punishable under Section 7 and clauses (i) and (ii) ofSection13(1)(d) read with Section 13(2) of the Prevention of CorruptionFAct, 1988 (for short, ‘the PC Act’). The co-accused, Mr. Yogesh Kumar,was convicted by the Special Judge for the offence punishable underSection 12 of the PC Act. The co-accused was acquitted by the HighCourt. The appellant was sentenced to undergo a rigorous imprisonmentfor a period of three years and to pay a fine of Rs.15,000/- for theoffence punishable under sub-section (2) of Section 13 of the PC Act.GFor the offence punishable under Section 7, she was sentenced to undergorigorous imprisonment for two years and to pay a fine of Rs.5,000/-.Sentences in default of payment of fine were also imposed. The convictionof the appellant has been upheld by the High Court by the impugnedjudgment.

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2. The complainant – Mr. Ravijit Singh died before the trialcommenced. In fact, PW-7, the Investigation Officer, deposed that thecomplainant was murdered. In his complaint, the complainant stated thathe was doing business of sale and purchase of cars in a shop situated atVikas Puri, New Delhi. His case is that there was no electricity meterinstalled in his shop and therefore, on 6[th] May 1996 he applied for anelectricity meter. In the complaint filed by him on 17[th] April 2000, in theform of his statement recorded by the Anti- Corruption Bureau, he statedthat pursuant to the application dated 6[th] May 1996, a meter was installedin his shop and after a few months, he found that the meter was removed.As the shopkeepers in the area had got the electricity meters installedthrough the appellant, he met her. On 17[th] April 2000, he received atelephone call at 7:30 a.m. from the appellant who was working as anInspector in the D.V.B./electricity department in the local area. Shecalled him at her residence to discuss the issue of the electricity meter.At 8:00 a.m., when the complainant met her, she demanded a sum ofRs.15,000/- for getting the meter installed and ultimately after negotiations,she settled the demand at Rs.10,000/-. According to the complainant,the appellant stated that she would come to his shop between 3:00 and4:00 p.m. when the complainant should hand over the papers for theelectricity meter and Rs.10,000/- as a bribe. The complainant stated thathe had no option but to accept her demand for a bribe.

3. The prosecution’s case is that on the basis of the aforesaidcomplaint, a trap was laid. PW-5, Mr. S. K. Awasthi, was the shadowwitness. When he along with the complainant as well as members of theraiding party visited the complainant’s shop at 3:50 p.m., the appellantwas not present there. At about 4:40 p.m., a telephone call was receivedby the complainant that the appellant would come at around 5:30/6:00p.m. At 5:20 p.m., the appellant came with the co-accused and demandedthe documents and bribe of Rs.10,000/-, which was paid by thecomplainant. The Special Court held that there was sufficientcircumstantial evidence on record to prove the guilt of the appellant. Infact, a finding was recorded on the basis of circumstantial evidence thatthe demand and acceptance were proved. The order of conviction ofthe learned Special Court as regards the appellant has been confirmedby the High Court in the impugned judgment.

4. While hearing this appeal, a bench of two Hon’ble Judges ofthis Court came to a conclusion that the decisions of this Court of the AB

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Abenches of three Hon’ble Judges in the cases of B. Jayaraj v. State ofAndhra Pradesh[1]and P. Satyanarayana Murthy v. District Inspectorof Police, State of Andhra Pradesh & Anr.[2]were in conflict with anearlier three-Judge bench’s decision in the case of M. Narsinga Rao v.State of A.P.[3]Accordingly, the following question was referred to thelarger bench:B

“The question whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is itnot permissible to draw inferential deduction of culpability/guilt ofa public servant under Section 7 and Section 13(1)(d) read withSection 13(2) of Prevention of Corruption Act, 1988 based onCother evidence adduced by the prosecution.”

5. The above-mentioned question was referred for decision to aConstitution Bench, which disposed of the reference by the judgmentdated 15[th] December 2022[4]. Broadly, the Constitution Bench held that inabsence of the complaint’s testimony in a prosecution for offencesDpunishable under Sections 7 and 13(2) of the PC Act, the prosecutioncan rely upon even circumstantial evidence to prove the demand ofgratification. In paragraph 74 of the said decision, the Constitution Benchhas summarized its conclusions.

RIVAL SUBMISSIONSE

RIVAL SUBMISSIONSE

6. Shri S. Nagamuthu, the learned senior counsel appearing forthe appellant submitted that this is a case where there is no evidence ofdemand of illegal gratification by the appellant. The learned senior counselsubmitted that proof of demand of gratification by a public servant is asine qua non for the offences punishable under Sections 7 and 13(1)(d)Fof the PC Act. He submitted that the findings of the Courts are based onsurmises and conjectures.

7. Ms. Aishwarya Bhati, the learned Additional Solicitor Generalappearing for the prosecution supported the impugned judgments. Shesubmitted that PW-5 has proved the demand. Moreover, on the basis ofGthe circumstantial evidence, the demand and acceptance were proved.She also submitted that once the demand and acceptance are established, 1 2014 (13) SCC 552 2015 (10) SCC 1523 2001 (1) SCC 691H4 2022 SCCOnline SC 1724

there is a presumption that the acceptance of gratification proves theexistence of motive or reward. The learned ASG submitted that nointerference is called for with the impugned judgments.

LEGAL POSITION

8. Before we analyze the evidence, we must note that we aredealing with Sections 7 and 13 of the PC Act as they stood prior to theamendment made by the Act 16 of 2018 with effect from 26[th] July 2018.We are referring to Sections 7 and 13 as they stood on the date ofcommission of the offence. Section 7, as existed at the relevant time,reads thus:

“7. Public servant taking gratification other than legalremuneration in respect of an official act.—

Whoever, being, or expecting to be a public servant, accepts orobtains 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 orforbearing to do any official act or for showing or forbearing toshow, in the exercise of his official functions, favour or disfavourto any person or for rendering or attempting to render any serviceor disservice to any person, with the Central Government or anyState Government or Parliament or the Legislature of any Stateor with any local authority, corporation or Government companyreferred to in clause (c) of section 2, or with any public servant,whether named or otherwise, shall be punishable withimprisonment which shall be not less than three years but whichmay extend to seven years and shall also be liable to fine.

-Explanations.

(a) “Expecting to be a public servant”- If a person not expectingto be in office obtains a gratification by deceiving others into abelief that he is about to be in office, and that he will then servethem, he may be guilty of cheating, but he is not guilty of theoffence defined in this section.

(b) “Gratification”. The word “gratification” is not restricted topecuniary gratifications or to gratifications estimable in money.

(c) “Legal remuneration”- The words “legal remuneration” arenot restricted to remuneration which a public servant can lawfully A

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demand, but include all remuneration which he is permitted by theGovernment or the organisation, which he serves, to accept.

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(d) “A motive or reward for doing”. A person who receives agratification as a motive or reward for doing what he does notintend or is not in a position to do, or has not done, comes withinBthis expression.

(e) Where a public servant induces a person erroneously to believethat his influence with the Government has obtained a title forthat person and thus induces that person to give the public servant,money or any other gratification as a reward for this service, thepublic servant has committed an offence under this section.”

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9. Section 13(1)(d), as existed at the relevant time, reads thus:

“13.Criminal misconduct by a public servant.—

(1) A public servantis said to commit the offence of criminalmisconduct,- D

(a) ………………………………

(b) ……………………………...

(c) ………………………………

E(d) if he,-

(i) by corrupt or illegal means, obtains for himself or for anyother person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himselfor for any other person any valuable thing or pecuniaryFadvantage; or

(iii) while holding office as a public servant, obtains for anyperson any valuable thing or pecuniary advantage without anypublic interest; or (e) ..................................................”G

The demand for gratification and the acceptance thereof are sinequa non for the offence punishable under Section 7 of the PC Act.

10. The Constitution Bench[4]was called upon to decide the questionwhich we have quoted earlier. In paragraph 74, the conclusions of theHConstitution have been summarised, which read thus:

“74. What emerges from the aforesaid discussion is summarisedas under:

(a) Proof of demand and acceptance of illegal gratificationby a public servant as a fact in issue by the prosecution is asine qua non in order to establish the guilt of the accusedpublic servant under Sections 7 and 13(1)(d)(i) and (ii) ofthe Act.

(b) In order to bring home the guilt of the accused, theprosecution has to first prove the demand of illegalgratification and the subsequent acceptance as a matter offact. This fact in issue can be proved either by directevidence which can be in the nature of oral evidence ordocumentary evidence.

(c) Further, the fact in issue, namely, the proof of demandand acceptance of illegal gratification can also be provedby circumstantial evidence in the absence of direct oral anddocumentary evidence.

(d) In order to prove the fact in issue, namely, the demand andacceptance of illegal gratification by the public servant, thefollowing aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe giver without therebeing any demand from the public servant and the latter simplyaccepts the offer and receives the illegal gratification, it is a caseof acceptance as per Section 7 of the Act. In such a case, thereneed not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demandand the bribe giver accepts the demand and tenders the demandedgratification which in turn is received by the public servant, it is acase of obtainment. In the case of obtainment, the prior demandfor illegal gratification emanates from the public servant. This isan offence under Section 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribegiver and the demand by the public servant respectively haveto be proved by the prosecution as a fact in issue. In otherwords, mere acceptance or receipt of an illegal gratificationwithout anything more would not make it an offence under ABC

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SUPREME COURT REPORTS

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ASection 7 or Section 13(1)(d), (i) and (ii) respectively of theAct. Therefore, under Section 7 of the Act, in order to bringhome the offence, there must be an offer which emanatesfrom the bribe giver which is accepted by the public servantwhich would make it an offence. Similarly, a prior demand bythe public servant when accepted by the bribe giver and inBturn there is a payment made which is received by the publicservant, would be an offence of obtainment under Section13(1)(d) and (i) and (ii) of the Act.

(e) The presumption of fact with regard to the demand andacceptance or obtainment of an illegal gratification may beCmade by a court of law by way of an inference only when thefoundational facts have been proved by relevant oral anddocumentary evidence and not in the absence thereof. Onthe basis of the material on record, the Court has the discretion toraise a presumption of fact while considering whether the fact ofDdemand has been proved by the prosecution or not. Of course, apresumption of fact is subject to rebuttal by the accused and inthe absence of rebuttal presumption stands.

(f) In the event the complainant turns ‘hostile’, or has died or isunavailable to let in his evidence during trial, demand of illegalEgratification can be proved by letting in the evidence of any otherwitness who can again let in evidence, either orally or bydocumentary evidence or the prosecution can prove the case bycircumstantial evidence. The trial does not abate nor does it resultin an order of acquittal of the accused public servant.

F(g) In so far as Section 7 of the Act is concerned, on theproof of the facts in issue, Section 20 mandates the court toraise a presumption that the illegal gratification was for thepurpose of a motive or reward as mentioned in the saidSection. The said presumption has to be raised by the court as alegal presumption or a presumption in law. Of course, the saidGpresumption is also subject to rebuttal. Section 20 does not applyto Section 13(1)(d) (i) and (ii) of the Act.

(h) We clarify that the presumption in law under Section 20 of theAct is distinct from presumption of fact referred to above in point H

(e) as the former is a mandatory presumption while the latter isdiscretionary in nature.”

The referred question was answered in paragraph 76 of theaforesaid judgment, which reads thus:

“76. Accordingly, the question referred for consideration of thisConstitution Bench is answered as under:

In the absence of evidence of the complainant (direct/primary, oral/ documentary evidence), it is permissible todraw an inferential deduction of culpability/guilt of a publicservant under Section 7 and Section 13(1)(d) read withSection 13(2) of the Act based on other evidence adduced”by the prosecution.

11. Even the issue of presumption under Section 20 of the PC Acthas been answered by the Constitution Bench by holding that only onproof of the facts in issue, Section 20 mandates the Court to raise apresumption that illegal gratification was for the purpose of motive orreward as mentioned in Section 7 (as it existed prior to the amendmentof 2018). In fact, the Constitution Bench has approved two decisions bythe benches of three Hon’ble Judges in the cases of B. Jayaraj[1]and P.Satyanarayana Murthy[2]. There is another decision of a three Judges’bench in the case of N. Vijayakumar v. State of Tamil Nadu[5], whichfollows the view taken in the cases of B. Jayaraj[1]andP. Satyanarayana Murthy[2]. In paragraph 9 of the decision in the caseof B. Jayaraj[1], this Court has dealt with the presumption under Section20 of the PC Act. In paragraph 9, this Court held thus:

“9. Insofar as the presumption permissible to be drawn underSection 20 of the Act is concerned, such presumption can onlybe in respect of the offence under Section 7 and not theoffences under Sections 13(1)(d)(i) and (ii) of the Act. In anyevent, it is only on proof of acceptance of illegal gratificationthat presumption can be drawn under Section 20 of the Actthat such gratification was received for doing or forbearingto do any official act. Proof of acceptance of illegal A

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Agratification can follow only if there is proof of demand. Asthe same is lacking in the present case the primary facts onthe basis of which the legal presumption under Section 20can be drawn are wholly absent.”

(emphasis added)

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The presumption under Section 20 can be invoked only when thetwo basic facts required to be proved under Section 7, are proved. Thesaid two basic facts are ‘demand’ and ‘acceptance’ of gratification.The presumption under Section 20 is that unless the contrary is proved,the acceptance of gratification shall be presumed to be for a motive orCreward, as contemplated by Section 7. It means that once the basicfacts of the demand of illegal gratification and acceptance thereof areproved, unless the contrary are proved, the Court will have to presumethat the gratification was demanded and accepted as a motive or rewardas contemplated by Section 7. However, this presumption is rebuttable.Even on the basis of the preponderance of probability, the accused canDrebut the presumption.

12. In the case of N. Vijayakumar[5], another bench of threeHon’ble Judges dealt with the issue of presumption under Section 20and the degree of proof required to establish the offences punishableunder Section 7 and clauses (i) and (ii) Section 13(1)(d) read with SectionE13(2) of PC Act. In paragraph 26, the bench held thus:

“26. It is equally well settled that mere recovery by itself cannotprove the charge of the prosecution against the accused. Referencecan be made to the judgments of this Court in C.M. Girish Babuv. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2FSCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B. Jayaraj v.State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] In theaforesaid judgments of this Court while considering the caseunder Sections 7, 13(1)(d)(i) and (ii) of the Prevention ofCorruption Act, 1988 it is reiterated that to prove theGcharge, it has to be proved beyond reasonable doubt thatthe accused voluntarily accepted money knowing it to bebribe. Absence of proof of demand for illegal gratification andmere possession or recovery of currency notes is not sufficient toconstitute such offence. In the said judgments it is also held thateven the presumption under Section 20 of the Act can be drawn H

only after demand for and acceptance of illegal gratification isproved. It is also fairly well settled that initial presumption ofinnocence in the criminal jurisprudence gets doubled by acquittalrecorded by the trial court.”

Thus, the demand for gratification and its acceptance must beproved beyond a reasonable doubt.

13. Section 7, as existed prior to 26[th] July 2018, was differentfrom the present Section 7. The unamended Section 7 which is applicablein the present case, specifically refers to “any gratification”. Thesubstituted Section 7 does not use the word “gratification”, but it uses awider term “undue advantage”. When the allegation is of demand ofgratification and acceptance thereof by the accused, it must be as amotive or reward for doing or forbearing to do any official act. The factthat the demand and acceptance of gratification were for motive orreward as provided in Section 7 can be proved by invoking the presumptionunder Section 20 provided the basic allegations of the demand andacceptance are proved. In this case, we are also concerned with theoffence punishable under clauses (i) and (ii) Section 13(1)(d) which ispunishable under Section 13(2) of the PC Act. Clause (d) of sub-section(1) of Section 13, which existed on the statute book prior to the amendmentof 26[th] July 2018, has been quoted earlier. On a plain reading of clauses(i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance ofillegal gratification will be necessary to prove the offences under clauses(i) and (ii) of Section 13(1)(d). In view of what is laid down by theConstitution Bench, in a given case, the demand and acceptance of illegalgratification by a public servant can be proved by circumstantial evidencein the absence of direct oral or documentary evidence. While answeringthe referred question, the Constitution Bench has observed that it ispermissible to draw an inferential deduction of culpability and/or guilt ofthe public servant for the offences punishable under Sections 7 and13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that inabsence of direct evidence, the demand and/or acceptance can alwaysbe proved by other evidence such as circumstantial evidence.

14. The allegation of demand of gratification and acceptance madeby a public servant has to be established beyond a reasonable doubt.The decision of the Constitution Bench does not dilute this elementary A

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Arequirement of proof beyond a reasonable doubt. The Constitution Benchwas dealing with the issue of the modes by which the demand can beproved. The Constitution Bench has laid down that the proof need notbe only by direct oral or documentary evidence, but it can be by way ofother evidence including circumstantial evidence. When reliance is placedon circumstantial evidence to prove the demand for gratification, theBprosecution must establish each and every circumstance from whichthe prosecution wants the Court to draw a conclusion of guilt. The factsso established must be consistent with only one hypothesis that therewas a demand made for gratification by the accused. Therefore, in thiscase, we will have to examine whether there is any direct evidence ofCdemand. If we come to a conclusion that there is no direct evidence ofdemand, this Court will have to consider whether there is anycircumstantial evidence to prove the demand.

CONSIDERATION OF THE EVIDENCE ON RECORD

CONSIDERATION OF THE EVIDENCE ON RECORD

15. Now, coming to the evidence on record, according to theDprosecution, the direct evidence is in the form of evidence of PW-5 –Mr. S.K. Awasthi. In this case, the complainant had died and therefore,he could not be examined. The raiding party consisted of PW-5, Mr.S.K. Awasthi, an Officer in Irrigation Department; PW-6, Mr. O.D.Yadav, Traffic Inspector and PW-7, Mr. Niranjan Singh, ACP. Going byEthe complaint which could not be proved through the complainant, it isthe case of the prosecution that the first demand was made by theappellant to the complainant in the morning of 17th April 2000 when hemet her at her residence. There was no charge framed on the basis ofthis demand. According to the prosecution’s case, the second demandwas made during the trap. There is absolutely no evidence about theFfirst demand made in the house of the appellant as no one except thecomplainant was present there. According to the prosecution’s case,PW-5 was the witness to the second demand made by the appellant on17[th] April 2000 at around 5:20 p.m. PW-5 stated in his evidence thatthough the complainant had informed the trap party that the appellantGwill be visiting his shop at about 3:50 p.m., the appellant did not turn up.Subsequently, a telephone call was received by the complainant informingthat she would come by 5:30/6:00 p.m. Ultimately, according to the caseof PW-5, at about 5:20 p.m., the appellant along with the co-accusedcame to the Complainant’s shop. The version of PW-5, which accordingto the prosecution constitutes demand, reads thus:H

“Mrs. Neeraj Dutta asked the complainant to give papersregarding his electricity meter and Rs.10,000/- to her asshe was in a hurry. Complainant handed over the documents ofhis electricity meter and treated GC Notes of Rs.10,000/- to Mrs.Neeraj Dutta in her right hand after taking the same out of leftpocket of his shirt. Mrs. Neeraj Dutta handed over said GC Notesto his associate Yogesh Kumar to count and she told thecomplainant that his work would be done.”

16. Rest of the examination-in-chief deals with the acceptanceby the appellant and recovery. Now the question is whether, on the basisof the evidence on record, the prosecution has proved the demand ofgratification by the accused. When we consider the issue of proof ofdemand within the meaning of Section 7, it cannot be a simpliciter demandfor money but it has to be a demand of gratification other than legalremuneration. All that PW-5 says is when the appellant visited the shopof the complainant, she asked the complainant to give papers regardingthe electricity meter and Rs.10,000/- to her by telling him that she was ina hurry. This is not a case where a specific demand of gratification forproviding electricity meter was made by the appellant to the complainantin the presence of the shadow witness. PW-5 has not stated that therewas any discussion in his presence between the appellant and thecomplainant on the basis of which an inference could have been drawnthat there was a demand made for gratification by the appellant. Thewitness had no knowledge about what transpired between the complainantand the appellant earlier. PW-5 had admittedly no personal knowledgeabout the purpose for which the cash was allegedly handed over by thecomplainant to the appellant.

17. We may note here that as per the version of the appellant inher statement under Section 313 of the Code of Criminal Procedure,1973 (Cr.P.C.), on 17[th] April 2000, she was working as an LDC in DVBoffice. On that day, she was busy with her official duty in a collectiondrive organized by the department to collect dues from the consumers.Her explanation is that the complainant was her neighbour and he wantedher assistance to deposit electricity charges. She stated that earlier, shehad a transaction of sale and purchase of a car through the complainant.She has also stated that the complainant was a history-sheeter and therewere three First Information Reports (FIRs) registered against him. In A

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Athis context, PW-5 was questioned in the cross-examination. The relevantanswer given by PW-5 reads thus:

“I cannot confirm or deny that accused Neeraj Dutta along withher cashier and other staff consisting of four five member hadcollected Rs.71,000/- in the single delivery point camp held at JaiBVihar and she along with her staff members were coming in hercar and on the way she stopped at the shop of the complainantwho was her neighbour to collect the balance sale proceeds ofRs.1 lac of her previous car from the complainant as she had soldthe said car through the complainant to M/s. Sagar Motors andthis payment was to be received by her through complainant fromCM/s. Sagar Motors.”

It is pertinent to note here that PW-5 did not confirm the correctnessof the suggestion but stated that he was not in a position to deny thesame. In fact, PW-7, the investigation officer, deposed that cash ofRs.71,900/- was found in the appellant’s car. This lends support to theDdefence that there was a recovery drive conducted by the appellant.Apart from the evidence of PW-5, there is no other evidence that ispressed into service by the prosecution for proving the demand by theappellant. Even taking the statements of PW-5 in the examination-in-chiefas correct, it is impossible to even infer that the demand of Rs.10,000/-Ewas made by the appellant by way of gratification. Every demand madefor payment of money is not a demand for gratification. It has to besomething more than mere demand for money.

18. There is one more important factual aspect to be noted whichcreates serious doubt about the prosecution’s case. In the complaintFfiled by the deceased complainant on 17[th] April 2000, in the form of hisstatement recorded by the Anti- Corruption Bureau, he has stated thatpursuant to the application dated 6[th] May 1996, a meter was installed inhis shop and after a few months, he found that the meter was removed.However, the Special Court has observed in paragraph 19 of theimpugned judgment that a complaint regarding a stolen electricity meterGwas registered at the instance of the complainant on 25[th] April 2000.Thus, the grievance regarding stolen meter was made by the complainant8 days after the alleged demand for bribe. In fact, PW-7 admitted thatthe complainant did not produce a copy of the application made by himfor providing electricity meter. PW-7 further stated that the complainantHdid not clearly tell him that he had given such application. In absence of proof of making such application, the prosecution’s case regarding demandof bribe for installing new electricity meter becomes doubtful. Moreover,till 24[th] April 2000, the complainant did not register a complaint regardingcommission of offence. This makes the prosecution’s case regardingthe demand of gratification on 17[th] April 2000 for installing a new electricitymeter extremely doubtful.

19. In the present case, there are no circumstances brought onrecord which will prove the demand for gratification. Therefore, theingredients of the offence under Section 7 of the PC Act were notestablished and consequently, the offence under Section 13(1)(d) willnot be attracted.

20. Hence, the appeal must succeed. We set aside the impugnedjudgment and the judgment of the Special Court and set aside theconviction and sentence of the appellant. The bail bonds of the appellantstand cancelled. Appeal is allowed.

Nidhi Jain

Appeal allowed.

(Assisted by : Yash Chavan and Tamana, LCRAs)

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