MRS. NEERAJ DUTTA versus STATE (GOVT. OF NCT OF DELHI) on 28 February 2019

SUPREME COURT REPORTS[2019] 4 S.C.R. 54

[2019] 4 S.C.R.

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MRS. NEERAJ DUTTA

v.

STATE (GOVT. OF NCT OF DELHI)

(Criminal Appeal No. 1669 of 2009)

BFEBRUARY 28, 2019

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Prevention of Corruption Act, 1988 – s.7 & 13(1)(d) r/w.s.13(2) – Prosecution case that Appellant-accused no.1 demandedand accepted illegal gratification – Complainant passed away beforeCthe trial so he was not examined – Trial court convicted appellant-accused no.1 and accused no.2 u/ss. 7 and s.13(1)(d) r/w. s.13(2)of the Prevention of Corruption Act – High Court affirmed theconviction of the appellant-accused no.1 and acquitted accusedno.2 – Appellant contended that when the complainant passed away,Dprimary evidence of demand was not forthcoming and when theprosecution could not establish the demand by such primaryevidence, the conviction of the appellant cannot be sustained andplaced reliance upon P. Satyanarayana Murthy v. District Inspectorof Police, State of Andhra Pradesh and another (2015) 10 SCC 152 –Respondent contended that P. Satyanarayana had not taken noteEof the consistent view taken by the Supreme Court – Held: In lightof the consistent view taken by the Supreme Court in variousjudgments and a different observation and findings recorded bySupreme Court in P. Satyanarayana Murthy case – The issuerequires consideration by the larger Bench – Thus, matter referredFto the larger bench.

Referring the matter to larger Bench, the Court HELD: 1. Contention of the appellant is that mere proof ofreceipt of money by the accused in the absence of proof of demandof illegal gratification is not sufficient to prove the guilt of theGaccused. It was contended that when the complainant passedaway, primary evidence of demand is not forthcoming and whenthe prosecution could not establish the demand by such primaryevidence, the conviction of the appellant cannot be sustained.[Para 5][58-B, C]

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2. In support of his contention, the appellant placed relianceupon P. Satyanarayana Murthy v. District Inspector of Police, Stateof Andhra Pradesh and another. In the said case, the complainantdied before the trial and thus could not be examined by theprosecution. [Para 6][58-C]

3. The State has drawn attention to number of judgmentswhere accused was convicted even when the evidence ofcomplainant was not available either due to death of complainantor where the complainant had turned hostile. In Kishan ChandMangal v. State of Rajasthan, by the time of trial, the complainantexpired and he could not be examined. [Para 8][55-G]

4. In Hazari Lal v. State (Delhi Administration), thecomplainant was declared hostile and the only other evidencewas that of Inspector (PW-8) to whom the complainant madestatement when he went to lodge the complaint and anotherwitness who has supported the prosecution case only in someparticulars. Based on the evidence of the Inspector who laid thetrap and panch witness and observing that it is not necessarythat the passing of money should be proved by direct evidence.[Para 9][60-B, C]

5. The direct or primary evidence of demand may not beavailable at least in three instances:- (i) where the complainant isdead 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 beavailable in all the above instances but from the evidence of panchwitness, acceptance of money was proved by Phenolphthalein Testand by raising presumption under Section 20 of the Act, it ispermissible to draw inference to prove the demand. [Para 11][62-E]

6. This Court is of the opinion that the following issuerequires consideration by the larger Bench:- “The question whether in the absence of evidence ofcomplainant/direct or primary evidence of demand of illegalgratification, is it not permissible to draw inferential deduction ofculpability/guilt of a public servant under Section 7 and Section13(1)(d) read with Section 13(2) of Prevention of Corruption Act,

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A1988 based on other evidence adduced by the prosecution.” [Para14][63-B, C]

7. In the light of the consistent view taken by this Court invarious judgments, this Bench has some reservation in respectof the observation and findings recorded by this Court in P.BSatyanarayana Murthy v. District Inspector of Police, State ofAndhra Pradesh and another. The matter be placed before theHon’ble Chief Justice for appropriate orders. [Para 15][63-D]

P. Satyanarayana Murthy v. District Inspector of Police,State of Andhra Pradesh and another (2015) 10 SCCC152; Kishan Chand Mangal v. State of Rajasthan (1982)3 SCC 466 : [1983] 1 SCR 569; Hazari Lal v. State(Delhi Administration) (1980) 2 SCC 390 : [1980] 2SCR 1051; M. Narsinga Rao v. State of A.P. (2001) 1SCC 691 : [2000] 5 Suppl. SCR 584 – referred to.

Case Law Reference

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.

1669 of 2009.

From the Judgment and Order dated 02.04.2009 of the High Courtof Delhi at New Delhi in Criminal Appeal No. 4 of 2007.

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Guru Krishna Kumar, Sr. Adv., Satinder S. Gulati, Mrs. KamaldeepGulati, Advs. for the Appellant.

Ms. Kiran Suri, Sr. Adv., Ms. Rukhmini Bobde, B. V. BalaramDas, Ms. Snidha Mehra, Advs. for the Respondent.

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The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. This appeal arises out of the judgmentdated 02.04.2009 passed by the High Court of Delhi in Criminal AppealNos.15 and 4 of 2007 in and by which the High Court affirmed theconviction of the appellant under Section 7 and Section 13(1)(d) read H

with Section 13(2) of the Prevention of Corruption Act, 1988 and thesentence of imprisonment imposed upon her.

2. Complainant-Ravijit Singh Sethi received a phone call from theappellant who was working as LDC in Delhi Vidyut Board on 17.04.2000at 07.30 am asking the complainant to meet her at her house in connectionwith installation of electricity meter at his shop. When complainant metthe appellant, she demanded bribe of Rs.15,000/- for installation of meterwhich was subsequently reduced to Rs.10,000/- after negotiation. Theappellant agreed to receive the said amount between 03.00 PM-04.00PM on the same day at the shop of the complainant. As the complainantwas 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/- tothe appellant and she received the amount from the complainant and thesame was transferred to the second accused-Yogesh Kumar/Driver.Upon receiving signal from PW-5/shadow witness, PW-6-Inspector alongwith raiding party arrived and recovered Rs.10,000/- from the secondaccused-Yogesh Kumar. Hands of both the appellant and accused No.2-Yogesh Kumar turned pink, when they were put in the sodium bicarbonatesolution. Upon completion of investigation, charge sheet was filed againstthe appellant and accused Yogesh Kumar under Sections 7 and 13(2) ofPrevention of Corruption Act, 1988 (For short “The P.C. Act”).

3. Since the complainant passed away before the trial, he couldnot be examined. PW-5-shadow witness was examined who supportedthe case of the prosecution. Based upon the evidence of PW-5 andrecovery of money from the appellant, the trial court held that the demandand acceptance of illegal gratification has been established by theprosecution and convicted the appellant-accused No.1 under Section 7and Section 13(1)(d) read with Section 13(2) of the P.C. Act andsentenced her to undergo imprisonment for two years and three yearsrespectively and also imposed fine. The trial court also convicted accusedNo.2 under Section 12 of the P.C. Act for abetment of the offence. Inappeal, the High Court affirmed the conviction of the appellant and thesentence of imprisonment imposed upon her. The High Court acquittedthe second accused of the charges levelled against him holding that thereis no evidence to prove conspiracy or abetment. Being aggrieved, theappellant has preferred this appeal.

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A4. We have heard Mr. S. Guru Krishna Kumar, learned seniorcounsel appearing for the appellant and Ms. Kiran Suri, learned seniorcounsel appearing for the respondent-State.

5. Contention of the appellant is that mere proof of receipt ofmoney by the accused in the absence of proof of demand of illegalBgratification is not sufficient to prove the guilt of the accused. It wascontended that when the complainant passed away, primary evidence ofdemand is not forthcoming and when the prosecution could not establishthe demand by such primary evidence, the conviction of the appellantcannot be sustained.

C6. In support of his contention, the learned senior counsel for theappellant placed reliance upon P. Satyanarayana Murthy v. DistrictInspector of Police, State of Andhra Pradesh and another (2015)10 SCC 152. In the said case, the complainant died before the trial andthus could not be examined by the prosecution. Panch witness wasexamined as PW-1, which was the sheet anchor of the prosecution case.DObserving that on the demise of the complainant, primary evidence ofthe demand is not forthcoming and inferential deduction of demand isimpermissible in law, in paras (24) and (25), this Court held as under:- “24. The sheet anchor of the case of the prosecution is theevidence, in the facts and circumstances of the case, of PW 1 S.Udaya Bhaskar. ……. Though, a very spirited endeavour hasbeen made by the learned counsel for the State to co-relate thisstatement of PW 1 S. Udaya Bhaskar to the attendant facts andcircumstances including the recovery of this amount from thepossession of the appellant by the trap team, identification of thecurrency notes used in the trap operation and also the chemicalreaction of the sodium carbonate solution qua the appellant, weare left unpersuaded to return a finding that the prosecution in theinstant case has been able to prove the factum of demand beyondreasonable doubt. Even if the evidence of PW 1 S. Udaya Bhaskaris accepted on the face value, it falls short of the quality anddecisiveness of the proof of demand of illegal gratification asenjoined by law to hold that the offence under Section 7 or Sections13(1)(d)(i) and (ii) of the Act has been proved. True it is, that onthe demise of the complainant, primary evidence, if any, of thedemand is not forthcoming. According to the prosecution, thedemand had in fact been made on 3-10-1996 by the appellant to E

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MRS. NEERAJ DUTTA v. STATE (GOVT. OF NCT OF DELHI)[R. BANUMATHI, J.]

the complainant and on his complaint, the trap was laid on thenext date i.e. 4-10-1996. However, the testimony of PW 1 S.Udaya Bhaskar does not reproduce the demand allegedly madeby the appellant to the complainant which can be construed to beone as contemplated in law to enter a finding that the offenceunder Section 7 or Sections 13(1)(d)(i) and (ii) of the Act againstthe appellant has been proved beyond reasonable doubt.

25. In our estimate, to hold on the basis of the evidence on recordthat the culpability of the appellant under Sections 7 and 13(1)(d)(i)and (ii) has been proved, would be an inferential deduction whichis impermissible in law. Noticeably, the High Court had acquittedthe appellant of the charge under Section 7 of the Act and theState had accepted the verdict and has not preferred any appealagainst the same. The analysis undertaken as hereinabove quaSections 7 and 13(1)(d)(i) and (ii) of the Act, thus, had been tounderscore the indispensability of the proof of demand of illegalgratification”.……..[Underlining added].

In Satyanarayana, the court proceeded under the footing thatfailure of the prosecution to prove the demand for illegal gratificationdue to the death of complainant would be fatal to the prosecution caseand recovery of the amount from the accused would not entail hisconviction.

7. Ms. Kiran Suri, learned senior counsel for the State submittedthat in Satyanarayana, the court did not notice the line of judgmentsand the consistent view taken by this Court in various decisions thatdemand can be proved either by direct evidence or by drawing inferencefrom other evidence like evidence of panch witness and thecircumstances.

8. The learned senior counsel has drawn our attention to numberof judgments where accused was convicted even when the evidence ofcomplainant was not available either due to death of complainant orwhere the complainant had turned hostile. In Kishan Chand Mangalv. State of Rajasthan (1982) 3 SCC 466, by the time of trial, thecomplainant Rajendra Dutt expired and he could not be examined. TheCourt relied upon evidence of two Motbir witnesses Ram Babu (PW-1)and Keshar Mal (PW-2), Dy. SP Mahavir Prasad (PW-7) and the factumof recovery of money from the accused and convicted the accused AB

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Athereon. Affirming the conviction of the appellant/accused, this Courtheld that “…..the tell-tale circumstances which do indicate that theremust have been a demand……and it is not proper to say that there isno evidence of demand of bribe as on November 20, 1974.”

9. In Hazari Lal v. State (Delhi Administration) (1980) 2BSCC 390, the complainant was declared hostile and the only other evidencewas that of Inspector (PW-8) to whom the complainant made statementwhen he went to lodge the complaint and another witness who hassupported the prosecution case only in some particulars. Based on theevidence of the Inspector who laid the trap and panch witness andobserving that it is not necessary that the passing of money should beCproved by direct evidence, in para (10) of Hazari Lal, the SupremeCourt held as under:-

“10. ……It is not necessary that the passing of money should beproved by direct evidence. It may also be proved by circumstantialevidence. The events which followed in quick succession in theDpresent case lead to the only inference that the money wasobtained by the accused from PW 3. Under Section 114 of theEvidence Act the court may presume the existence of any factwhich it thinks likely to have happened, regard being had to thecommon course of natural events, human conduct and public andEprivate business, in their relation to facts of the particular case.One of the illustrations to Section 114 of the Evidence Act is thatthe court may presume that a person who is in possession of thestolen goods soon after the theft, is either the thief or has receivedthe goods knowing them to be stolen, unless he can account forhis possession. So too, in the facts and circumstances of the presentFcase the court may presume that the accused who took out thecurrency notes from his pocket and flung them across the wallhad obtained them from PW 3, who a few minutes earlier wasshown to have been in possession of the notes. Once we arrive atthe finding that the accused had obtained the money from PW 3,Gthe presumption under Section 4(1) of the Prevention of CorruptionAct is immediately attracted. The presumption is of courserebuttable but in the present case there is no material to rebut thepresumption. The accused was, therefore, rightly convicted bythe courts below.” [Underlining added].

10. In M. Narsinga Rao v. State of A.P. (2001) 1 SCC 691, bothcomplainant-PW-1 and PW-2-panch witness have turned hostile.Appellant/accused thereon contended that the presumption under Section20 of the Act could be drawn only when the prosecution succeeded inestablishing the demand by adducing direct evidence that the delinquentpublic servant accepted or obtained gratification and that the same cannotdepend on an inference for affording foundation for the legal presumptionenvisaged in Section 20 of the Act. Rejecting the said contention andconsidering the scope of the expression “shall presume” employed inSection 20(1) of the Act, it was held as under:- “14. When the sub-section deals with legal presumption it is to beunderstood as in terrorem i.e. in tone of a command that it has tobe presumed that the accused accepted the gratification as amotive or reward for doing or forbearing to do any official actetc., if the condition envisaged in the former part of the section issatisfied. The only condition for drawing such a legal presumptionunder Section 20 is that during trial it should be proved that theaccused has accepted or agreed to accept any gratification. Thesection does not say that the said condition should be satisfiedthrough direct evidence. Its only requirement is that it must beproved that the accused has accepted or agreed to acceptgratification. Direct evidence is one of the modes through whicha fact can be proved. But that is not the only mode envisaged inthe Evidence Act.

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17. Presumption is an inference of a certain fact drawn fromother proved facts.While inferring the existence of a fact fromanother, the court is only applying a process of intelligentreasoningwhich the mind of a prudent man would do under similarcircumstances. Presumption is not the final conclusion to be drawnfrom other facts. But it could as well be final if it remainsundisturbed later. Presumption in law of evidence is a rule indicatingthe stage of shifting the burden of proof. From a certain fact orfacts the court can draw an inference and that would remain untilsuch inference is either disproved or dispelled.

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A19. Illustration (a) to Section 114 of the Evidence Act says thatthe court may presume that “a man who is in the possession ofstolen goods soon after the theft is either the thief or has receivedthe goods knowing them to be stolen, unless he can account forhis possession”. That illustration can profitably be used in thepresent context as well when prosecution brought reliable materialsBthat the appellant’s pocket contained phenolphthalein-smearedcurrency notes for Rs 500 when he was searched by PW-7 DSPof Anti-Corruption Bureau. That by itself may not or need notnecessarily lead to a presumption that he accepted that amountfrom somebody else because there is a possibility of somebodyCelse either stuffing those currency notes into his pocket or stealthilyinserting the same therein. But the other circumstances whichhave been proved in this case and those preceding and succeedingthe searching out of the tainted currency notes, are relevant anduseful to help the court to draw a factual presumption that theappellant had willingly received the currency notes.” [UnderliningDadded].

11. The direct or primary evidence of demand may not be availableat least in three instances:- (i) where the complainant is dead and couldnot be examined; (ii) complainant turned hostile; and (iii) complainantcould not be examined either due to non-availability or other reasons.EDirect proof of demand may not be available in all the above instancesbut from the evidence of panch witness, acceptance of money was provedby Phenolphthalein Test and by raising presumption under Section 20 ofthe Act, it is permissible to draw inference to prove the demand.

12. On behalf of the respondent, it was submitted that under SectionF20 of the P.C. Act, the Court is bound to draw presumption mentionedtherein and the presumption in question will hold good unless the accusedproves the contrary. It was contended that the purpose of presumptionunder Section 20 of the Act is to relieve the prosecution from the burdenof proving a fact and while so, insistence upon primary evidence forGproving demand is not in consonance with the view taken by the SupremeCourt in line of judgments.

13. The learned senior counsel for the respondent submitted thatthe court must take into consideration the facts and circumstances broughton record and may draw inference to arrive at the conclusion whetherHdemand and acceptance of the illegal gratification has been proved or MRS. NEERAJ DUTTA v. STATE (GOVT. OF NCT OF DELHI)[R. BANUMATHI, J.]

not. Insistence of direct proof or primary evidence for proving the demandmay not be in consonance with the view taken by this Court in numberof judgments. The learned senior counsel has drawn our attention toother cases to substantiate her contention that Satyanarayana had nottaken note of the consistent view taken by the Supreme Court. We arenot delving into the controversy any further. We are of the opinion thatthe 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 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 onother evidence adduced by the prosecution.”

15. In the light of the consistent view taken by this Court in variousjudgments, we have some reservation in respect of the observation andfindings recorded by this Court in P. Satyanarayana Murthy v. DistrictInspector of Police, State of Andhra Pradesh and another (2015) 10SCC 152. The matter be placed before the Hon’ble Chief Justice forappropriate orders.

Ankit Gyan

Matter referred to larger Bench.

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