MUKHTIAR SINGH (SINCE DECEASED) THROUGH HIS L.R. VERSUS STATE OF PUNJAB

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1163 of 2017, Judgment Date: Jul 14, 2017

•  The indispensability of the proof of demand and illegalgratification in establishing a charge under Sections 7 and 13 of theAct, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification 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 besustained.
• In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P.6 underlining that mere possession and recovery of currency notes from an accused withoutproof of demand would not establish an offence under Section 7 aswell as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of positionas a public servant to obtain any valuable thing or pecuniaryadvantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand.
• This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13and the proof thereof summed up its conclusions as hereunder:“23. The proof of demand of illegal gratification,thus, is the gravamen of the offence underSections 7 and 13(1)(d)(i) and (ii) of the Act andin absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of anyamount allegedly by way of illegal gratificationor recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under the two sections of the Act. 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 and 13 of the Act would not entail his convictionthereunder.”(emphasis supplied)
• In his cross-examination, the complainant admitted that M.S.Cheena, the then Superintendent of Police, Vigilance was posted as S.S.P, Moga but denied that he was related to him. He could not recall the date on which he had paid Rs.3,000/- for the first time to the original accused and admitted of not having made any complaint in connection therewith. He conceded that one Santosh Singh Lamberdar of his village was with him when he paid this amount but the said person had not been produced as a witness either in the investigation or at the trial. He admitted as well that the card board box containing the money was not seized. 
•  Inspector Satpal (PW2), who was the shadow witness, after reiterating the statement of the complainant with regard to the pre-trap proceedings, stated that he along with the complainant on that day met the original accused and followed to his quarter in the building of the police station whereafter the original accused enquired of the complainant as to whether he had brought the money, on which, the latter handed over three currency notes denomination of Rs.500 and five currency notes of Rs.100 each to him and that he kept the same in a card board box lying near him.The witness stated that he then gave a signal to the other membersof the raiding party including the D.S.P. (Vigilance) who entered the room and undertook the steps pertaining to recovery and seizure as narrated by the complainant.
• In cross-examination, this witness did not refer to the quarter of the original accused in the building of the police station and stated that both he and the complainant met him in his room in the police station. He however confirmed that the card board box was lying on the table of the accused which was not seized by the police.
•  Aman Kumar Mani (PW3) is a witness to the steps taken by the raiding party after it had entered the room in response to thesignal given by the shadow witness. According to him, on being enquired, the original accused took out the currency notes of Rs.2,000/- from the box lying in his room and that the same tallied with those set out in the memo prepared by the police. He proved as well the currency notes as Ex.P1 to P8.23. Superintendent of Police, Paramjit Singh Khaira (PW5),deposed that he was posted as DSP (Vigilance) FS-I, Unit-2, Punjab,Chandigarh on 01.06.2005. He stated that on that day, he recorded the statement of the complainant pertaining to the demand of illegal gratification made by the original accused. He thereafter constituted a trap team as above and treated currencynotes totalling Rs.2,000/- for the exercise and led the party to the Ajnala Police Station. The witness affirmed that Inspector Satpalwas nominated as the shadow witness to accompany thecomplainant to witness the actual transaction and track the accompanying conversation and to give signal to the trap team atthe appropriate point of time. This witness however stated in categorical terms that the complainant and the shadow witnesswent to the house of the original accused whereas the other members of the trap team waited outside and when InspectorSatpal flagged his signal, the house of the accused situated nearAjnala Police Station was raided. He stated that the police partyintercepted the accused and on being asked, he took out the currency notes of Rs.2,000/- from the card board box placed on thenearby table which tallied with those mentioned in the pre-trap,prepared memo and seized the currency notes. That the fingers of the original accused were dipped in the liquid compound, whichturned pink was also stated.
•  In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/- as well as the demand of Rs.2,000/- has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective,the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the 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 the offen ceunder Section 7 or 13 of the Act.
• In addition thereto, not only the prosecution version of demand and acceptance of illegal gratification in the police station seems to be unusual, contradictions of the witnesses, PW-1, PW-2and PW-5 with regard to the location of the transaction relating to Rs.2,000/- also renders it doubtful. It is also noticeably unusual that the currency notes when allegedly handed over by the complainant to the original accused, the same instead of being keenly kept with him, were placed casually in the card board box placed on his table. 
•  On an overall appreciation of evidence on record, in the context of the elucidation of law pertaining to proof of the ingredients of Sections 7 and 13 of the Act as adverted to herein-above, we are of the unhesitant opinion that the prosecution has failed to prove the charge levelled against the original accused beyond all reasonable doubt. The charge against him therefore fails.

MUKHTIAR SINGH (SINCE DECEASED) THROUGH HIS L.R. VERSUS STATE OF PUNJAB