Case: A. Subair Vs. State Of Kerala

We were taken through the evidence of PW-10 and, in our considered view, his evidence suffers from serious infirmities. The Special Judge as well as the High court were not even clear about the place where PW-10 has positioned himself. He was not within the hearing range that he could hear the conversation that is said to have taken place between the complainant and the appellant. The defence of the appellant was that the complainant attempted to thrust the currency notes into his pocket. PW-10 stated that the currency notes (M.O. 1 series) were handed over by the complainant and accepted by the appellant through the counter/window but admittedly the complainant was found inside the office room when PW-12 reached. If the amount had already been handed over by the complainant to the appellant through the counter/window, where was an occasion for the complainant to be inside the office room where the appellant was said to be sitting. This casts serious doubt about the prosecution case and, more particularly, the evidence of PW-10 that the amount was handed over by the complainant from outside the window and accepted by the appellant while sitting inside the room. 17. The High Court noticed: "But why was CW-1 (complainant) found inside the office room? Though such a specific version has not at all been given by the prosecution, probabilities unmistakably suggest that the presence of complainant inside the room obviously must have been necessarily to sign the acknowledgment on Ext. P-23(a). Specific evidence, I repeat is not available on the point." Strangely, the High Court made out a new case in favour of prosecution although it was not stated by PW-10 nor anyone that the complainant entered the room, after handing over money to the accused, to sign the acknowledgement on the register [Ext. P-23(a)]. As a matter of fact the presence of the complainant inside the room renders the evidence of PW-10 highly doubtful. 18. In our view, with such interested evidence of PW-10, who is a police constable and subordinate to PW-12, it would be not only unsafe but dangerous to rest conviction upon his testimony.19. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.20. The High Court drew presumption under Section 20 of the Act for charge under Section 7. Based on that, it was held that the prosecution has proved the offence punishable under Section 7 of the Act. 21. Section 20 of the Act, 1988 reads thus:- "20. Presumption where public servant accepts gratification other than legal remuneration. –(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.(2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration ) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn." 22. Sub-Section (3) is a "non-obstante clause". It provides that where the gratification is trivial and the Court is of opinion that no inference of corruption may fairly be drawn, it may decline to draw the presumption as referred to in sub-Sections (1) and (2). In other words, the Court is not bound to draw a presumption under Section 20 where the alleged gratification is too trivial. In a case such as this an inference of corruption may not be fairly drawn as the alleged demand was of Rs. 25/- only. In our view, the High Court was not justified in drawing the presumption under Section 20 and holding that offence punishable under Section 7 of the Act was proved. 23. Mere recovery of currency notes (Rs. 20/- and Rs.5/-) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. Insofar as Section 13 (1)(d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.Pertinently, Manaf (complainant) has not been tendered in evidence by the prosecution.(IO) in his entire deposition has not stated a word as to why Manaf was not examined or why it was not possible to tender him in evidence. In the absence of examination of the complainant, there is no substantive evidence to prove the factum of demand. The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification ofof the complainant. We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for theof the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the Court.is concerned, he did not fully support the case of prosecution. He deposed that he had an ear attack two months before recording of his deposition and due to the illness and the treatment, he could not recollect the details of the incident. He also stated that he was suffering from depressive psychosis. His evidence does not help the case of the prosecution at all. Thus, the evidence of two independent witnesses does not advance the prosecution case.16. As a matter of fact, the Special Judge as well as the High Court heavily relied upon the deposition ofin support of the prosecution case. We were taken through the evidence ofand, in our considered view, his evidence suffers from serious infirmities. The Special Judge as well as the High court were not even clear about the place wherehas positioned himself. He was not within the hearing range that he could hear the conversation that is said to have taken place between the complainant and the appellant. The defence of the appellant was that the complainant attempted to thrust the currency notes into his pocket.stated that the currency notes (M.O. 1 series) were handed over by the complainant and accepted by the appellant through the counter/window but admittedly the complainant was found inside the office room whenreached. If the amount had already been handed over by the complainant to the appellant through the counter/window, where was an occasion for the complainant to be inside the office room where the appellant was said to be sitting. This casts serious doubt about the prosecution case and, more particularly, the evidence ofthat the amount was handed over by the complainant from outside the window and accepted by the appellant while sitting inside the room.In our view, with such interested evidence ofwho is a police constable and subordinate toit would be not only unsafe but dangerous to rest conviction upon his testimony.19. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.20. The High Court drew presumption under Section 20 of the Act for charge under Section 7. Based on that, it was held that the prosecution has proved the offence punishable under Section 7 of the Act.Mere recovery of currency notes (Rs. 20/) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt.