MRS. NEERAJ DUTTA versus STATE (GOVT. OF NCT OF DELHI)
[2019] 4 S.C.R. 54, Supreme Court of India, 2019
Outcome: Matter referred to larger bench
Segment: Issues
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[2019] 4 S.C.R. 54
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MRS. NEERAJ DUTTA
v.
STATE (GOVT. OF NCT OF DELHI)
(Criminal Appeal No. 1669 of 2009)
FEBRUARY 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 demanded
and accepted illegal gratification – Complainant passed away before
the 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 the
conviction of the appellant-accused no.1 and acquitted accused
no.2 – Appellant contended that when the complainant passed away,
primary evidence of demand was not forthcoming and when the
prosecution could not establish the demand by such primary
evidence, the conviction of the appellant cannot be sustained and
placed reliance upon P. Satyanarayana Murthy v. District Inspector
of Police, State of Andhra Pradesh and another (2015) 10 SCC 152 –
Respondent contended that P. Satyanarayana had not taken note
of the consistent view taken by the Supreme Court – Held: In light
of the consistent view taken by the Supreme Court in various
judgments and a different observation and findings recorded by
Supreme Court in P. Satyanarayana Murthy case – The issue
requires consideration by the larger Bench – Thus, matter referred
to the larger bench.
Referring the matter to larger Bench, the
Court
HELD: 1. Contention of the appellant is that mere proof of
receipt of money by the accused in the absence of proof of demand
of illegal gratification is not sufficient to prove the guilt of the
accused.  It was contended that when the complainant passed
away, primary evidence of demand is not forthcoming and when
the prosecution could not establish the demand by such primary
evidence, the conviction of the appellant cannot be sustained.
[Para 5][58-B, C]
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MRS. NEERAJ DUTTA v. STATE (GOVT. OF NCT OF DELHI)
2. In support of his contention, the appellant placed reliance
upon P. Satyanarayana Murthy v. District Inspector of Police, State
of Andhra Pradesh and another.  In the said case, the complainant
died before the trial and thus could not be examined by the
prosecution. [Para 6][58-C]
3.  The State has drawn attention to number of judgments
where accused was convicted even when the evidence of
complainant was not available either due to death of complainant
or where the complainant had turned hostile.  In Kishan Chand
Mangal v. State of Rajasthan, by the time of trial, the complainant
expired and he could not be examined. [Para 8][55-G]
4.  In Hazari Lal v. State (Delhi Administration), the
complainant was declared hostile and the only other evidence
was that of Inspector (PW-8) to whom the complainant made
statement when he went to lodge the complaint and another
witness who has supported the prosecution case only in some
particulars.  Based on the evidence of the Inspector who laid the
trap and panch witness and observing that it is not necessary
that 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 be
available at least in three instances:- (i) where the complainant is
dead 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 be
available in all the above instances but from the evidence of panch
witness, acceptance of money was proved by Phenolphthalein Test
and by raising presumption under Section 20 of the Act, it is
permissible to draw inference to prove the demand. [Para 11]
[62-E]
6.  This Court is of the opinion that the 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 it not permissible to draw inferential deduction of
culpability/guilt of a public servant under Section 7 and Section
13(1)(d) read with Section 13(2) of Prevention of Corruption Act,
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1988 based on other evidence adduced by the prosecution.”  [Para
14][63-B, C]
7. In the light of the consistent view taken by this Court in
various judgments, this Bench has some reservation in respect
of the observation and findings recorded by this Court in P.
Satyanarayana Murthy v. District Inspector of Police, State of
Andhra Pradesh and another.  The matter be placed before the
Hon’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 SCC
152; 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] 2
SCR 1051; M. Narsinga Rao v. State of A.P. (2001) 1
SCC 691 : [2000] 5 Suppl. SCR 584 – referred to.
Case Law Reference
(2015) 10 SCC 152
referred to
Para 6
[1983] 1 SCR 569
referred to
Para 8
[1980] 2 SCR 1051
referred to
Para 9
[2000] 5 Suppl. SCR 584
referred to
Para 10
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1669 of 2009.
From the Judgment and Order dated 02.04.2009 of the High Court
of   Delhi at New Delhi in Criminal Appeal No. 4 of 2007.
Guru Krishna Kumar, Sr. Adv., Satinder S. Gulati, Mrs. Kamaldeep
Gulati, Advs. for the Appellant.
Ms. Kiran Suri, Sr. Adv., Ms. Rukhmini Bobde, B. V. Balaram
Das, Ms. Snidha Mehra, Advs. for the Respondent.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1.
This appeal arises out of the judgment
dated 02.04.2009 passed by the High Court of Delhi in Criminal Appeal
Nos.15 and 4 of 2007 in and by which the High Court affirmed the
conviction of the appellant under Section 7 and Section 13(1)(d) read
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MRS. NEERAJ DUTTA v. STATE (GOVT. OF NCT OF DELHI)
[R. BANUMATHI, J.]
with Section 13(2) of the Prevention of Corruption Act, 1988 and the
sentence of imprisonment imposed upon her.
2. Complainant-Ravijit Singh Sethi received a phone call from the
appellant who was working as LDC in Delhi Vidyut Board on 17.04.2000
at 07.30 am asking the complainant to meet her at her house in connection
with installation of electricity meter at his shop. When complainant met
the appellant, she demanded bribe of Rs.15,000/- for installation of meter
which was subsequently reduced to Rs.10,000/- after negotiation. The
appellant agreed to receive the said amount between 03.00 PM-04.00
PM on the same day at the shop of the complainant. As the complainant
was 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/- to
the appellant and she received the amount from the complainant and the
same was transferred to the second accused-Yogesh Kumar/Driver.
Upon receiving signal from PW-5/shadow witness, PW-6-Inspector along
with raiding party arrived and recovered Rs.10,000/- from the second
accused-Yogesh Kumar. Hands of both the appellant and accused No.2-
Yogesh Kumar turned pink, when they were put in the sodium bicarbonate
solution. Upon completion of investigation, charge sheet
was filed against
the appellant and accused Yogesh Kumar under Sections 7 and 13(2) of
Prevention of Corruption Act, 1988 (For short “The P.C. Act”).
3. Since the complainant passed away before the trial, he could
not be examined. PW-5-shadow witness was examined who supported
the case of the prosecution.  Based upon the evidence of PW-5 and
recovery of money from the appellant, the trial court held that the demand
and acceptance of illegal gratification has been established by the
prosecution and convicted the appellant-accused No.1 under Section 7
and Section 13(1)(d) read with Section 13(2) of the P.C. Act and
sentenced her to undergo imprisonment for two years and three years
respectively and also imposed fine. The trial court also convicted accused
No.2 under Section 12 of the P.C. Act for abetment of the offence. In
appeal, the High Court affirmed the conviction of the appellant and the
sentence of imprisonment imposed upon her.  The High Court acquitted
the second accused of the charges levelled against him holding that there
is no evidence to prove conspiracy or abetment.  Being aggrieved, the
appellant has preferred this appeal.
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4. We have heard Mr. S. Guru Krishna Kumar, learned senior
counsel appearing for the appellant and Ms. Kiran Suri, learned senior
counsel appearing for the respondent-State.
5. Contention of the appellant is that mere proof of receipt of
money by the accused in the absence of proof of demand of illegal
gratification is not sufficient to prove the guilt of the accused.  It was
contended that when the complainant passed away, primary evidence of
demand is not forthcoming and when the prosecution could not establish
the demand by such primary evidence, the conviction of the appellant
cannot be sustained.
6. In support of his contention, the learned senior counsel for the
appellant placed reliance upon P. Satyanarayana Murthy v. District
Inspector of Police, State of Andhra Pradesh and another        (2015)
10 SCC 152.  In the said case, the complainant died before the trial and
thus could not be examined by the prosecution.  Panch witness was
examined as PW-1, which was the sheet anchor of the prosecution case.
Observing that on the demise of the complainant, primary evidence of
the demand is not forthcoming and inferential deduction of demand is
impermissible in law, in paras (24) and (25), this Court held as under:-
“24. The sheet anchor of the case of the prosecution is the
evidence, in the facts and circumstances of the case, of PW 1 S.
Udaya Bhaskar. ……. Though, a very spirited endeavour has
been made by the learned
counsel for the State to co-relate this
statement of PW 1 S. Udaya Bhaskar to the attendant facts and
circumstances including the recovery of this amount from the
possession of the appellant by the trap team, identification of the
currency notes used in the trap operation and also the chemical
reaction of the sodium carbonate solution qua the appellant, we
are left unpersuaded to return a finding that the prosecution in the
instant case has been able to prove the factum of demand beyond
reasonable doubt. Even if the evidence of PW 1 S. Udaya Bhaskar
is accepted on the face value, it falls short of the quality and
decisiveness of the proof of demand of illegal gratification as
enjoined by law to hold that the offence under Section 7 or Sections
13(1)(d)(i) and (ii) of the Act has been proved. True it is, that on
the demise of the complainant, primary evidence, if any, of the
demand is not forthcoming. According to the prosecution, the
demand had in fact been made on 3-10-1996 by the appellant to
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[R. BANUMATHI, J.]
the complainant and on his complaint, the trap was laid on the
next date i.e. 4-10-1996. However, the testimony of PW 1 S.
Udaya Bhaskar does not reproduce the demand allegedly made
by the appellant to the complainant which can be construed to be
one as contemplated in law to enter a finding that the offence
under Section 7 or Sections 13(1)(d)(i) and (ii) of the Act against
the appellant has been proved beyond reasonable doubt.
25. In our estimate, to hold on the basis of the evidence on record
that the culpability of the appellant under Sections 7 and 13(1)(d)(i)
and (ii) has been proved, would be an inferential deduction which
is impermissible in law. Noticeably, the High Court had acquitted
the appellant of the charge under Section 7 of the Act and the
State had accepted the verdict and has not preferred any appeal
against the same. The analysis undertaken as hereinabove qua
Sections 7 and 13(1)(d)(i) and (ii) of the Act, thus, had been to
underscore the indispensability of the proof of demand of illegal
gratification”.……..[Underlining added].
In Satyanarayana, the court proceeded under the footing that
failure of the prosecution to prove the demand for illegal gratification
due to the death of complainant would be fatal to the prosecution case
and recovery of the amount from the accused would not entail his
conviction.
7. Ms. Kiran Suri, learned senior counsel for the State
submitted
that in Satyanarayana, the court did not notice the line of judgments
and the consistent view taken by this Court in various decisions that
demand can be proved either by direct evidence or by drawing inference
from other evidence like evidence of panch witness and the
circumstances.
8. The learned senior counsel has drawn our attention to number
of judgments where accused was convicted even when the evidence of
complainant was not available either due to death of complainant or
where the complainant had turned hostile.  In Kishan Chand Mangal
v. State of Rajasthan (1982) 3 SCC 466, by the time of trial, the
complainant Rajendra Dutt expired and he could not be examined. The
Court relied upon evidence of two Motbir witnesses Ram Babu (PW-1)
and Keshar Mal (PW-2), Dy. SP Mahavir Prasad (PW-7) and the factum
of recovery of money from the accused and convicted the accused
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thereon.  Affirming the conviction of the appellant/accused, this Court
held that “…..the tell-tale circumstances which do indicate that there
must have been a demand……and it is not proper to say that there is
no evidence of demand of bribe as on November 20, 1974.”
9. In Hazari Lal v. State (Delhi Administration) (1980) 2
SCC 390, the complainant was declared hostile and the only other evidence
was that of Inspector (PW-8) to whom the complainant made statement
when he went to lodge the complaint and another witness who has
supported the prosecution case only in some particulars.  Based on the
evidence of the Inspector who laid the trap and panch witness and
observing that it is not necessary that the passing of money should be
proved by direct evidence, in     para (10) of Hazari Lal, the Supreme
Court held as under:-
“10. ……It is not necessary that the passing of money should be
proved by direct evidence. It may also be proved by circumstantial
evidence. The events which followed in quick succession in the
present case lead to the only inference that the money was
obtained by the accused from PW 3. Under Section 114 of the
Evidence Act the court may presume the existence of any fact
which it thinks likely to have happened, regard being had to the
common course of natural events, human conduct and public and
private business, in their relation to facts of the particular case.
One of the illustrations to Section 114
of the Evidence Act is that
the court may presume that a person who is in possession of the
stolen goods soon after the theft, is either the thief or has received
the goods knowing them to be stolen, unless he can account for
his possession. So too, in the facts and circumstances of the present
case the court may presume that the accused who took out the
currency notes from his pocket and flung them across the wall
had obtained them from PW 3, who a few minutes earlier was
shown to have been in possession of the notes. Once we arrive at
the finding that the accused had obtained the money from PW 3,
the presumption under Section 4(1) of the Prevention of Corruption
Act is immediately attracted. The presumption is of course
rebuttable but in the present case there is no material to rebut the
presumption. The accused was, therefore, rightly convicted by
the courts below.” [Underlining added].
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10. In M. Narsinga Rao v. State of A.P. (2001) 1 SCC 691, both
complainant-PW-1 and PW-2-panch witness have turned hostile.
Appellant/accused thereon contended that the presumption under Section
20 of the Act could be drawn only when the prosecution succeeded in
establishing the demand by adducing direct evidence that the delinquent
public servant accepted or obtained gratification and that the same cannot
depend on an inference for affording foundation for the legal presumption
envisaged in Section 20 of the Act.  Rejecting the said contention and
considering the scope of the expression “shall presume” employed in
Section 20(1) of the Act, it was held as under:-
“14. When the sub-section deals with legal presumption it is to be
understood as in terrorem i.e. in tone of a command that it has to
be presumed that the accused accepted the gratification as a
motive or reward for doing or forbearing to do any official act
etc., if the condition envisaged in the former part of the section is
satisfied. The only condition for drawing such a legal presumption
under Section 20 is that during trial it should be proved that the
accused has accepted or agreed to accept any gratification. The
section does not say that the said condition should be satisfied
through direct evidence. Its only requirement is that it must be
proved that the accused has accepted or agreed to accept
gratification. Direct
evidence is one of the modes through which
a fact can be proved. But that is not the only mode envisaged in
the Evidence Act.
…………
17. Presumption is an inference of a certain fact drawn from
other proved facts. While inferring the existence of a fact from
another, the court is only applying a process of intelligent reasoning
which the mind of a prudent man would do under similar
circumstances. Presumption is not the final conclusion to be drawn
from other facts. But it could as well be final if it remains
undisturbed later. Presumption in law of evidence is a rule indicating
the stage of shifting the burden of proof. From a certain fact or
facts the court can draw an inference and that would remain until
such inference is either disproved or dispelled.
……..
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19. Illustration (a) to Section 114 of the Evidence Act says that
the court may presume that “a man who is in the possession of
stolen goods soon after the theft is either the thief or has received
the goods knowing them to be stolen, unless he can account for
his possession”. That illustration can profitably be used in the
present context as well when prosecution brought reliable materials
that the appellant’s pocket contained phenolphthalein-smeared
currency notes for Rs 500 when he was searched by  PW-7 DSP
of Anti-Corruption Bureau. That by itself may not or need not
necessarily lead to a presumption that he accepted that amount
from somebody else because there is a possibility of somebody
else either stuffing those currency notes into his pocket or stealthily
inserting the same therein. But the other circumstances which
have been proved in this case and those preceding and succeeding
the searching out of the tainted currency notes, are relevant and
useful to help the court to draw a factual presumption that the
appellant had willingly received the currency notes.” [Underlining
added].
11. The direct or primary evidence of demand may not be available
at least in three instances:- (i) where the complainant is dead 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 be available in all
the above instances
but from the evidence of panch witness, acceptance of money was proved
by Phenolphthalein Test and by raising presumption under Section 20 of
the Act, it is permissible to draw inference to prove the demand.
12. On behalf of the respondent, it was submitted that under Section
20 of the P.C. Act, the Court is bound to draw presumption mentioned
therein and the presumption in question will hold good unless the accused
proves the contrary. It was contended that the purpose of presumption
under Section 20 of the Act is to relieve the prosecution from the burden
of proving a fact and while so, insistence upon primary evidence for
proving demand is not in consonance with the view taken by the Supreme
Court in line of judgments.
13. The learned senior counsel for the respondent submitted that
the court must take into consideration the facts and circumstances brought
on record and may draw inference to arrive at the conclusion whether
demand and acceptance of the illegal gratification has been proved or
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not. Insistence of direct proof or primary evidence for proving the demand
may not be in consonance with the view taken by this Court in number
of judgments. The learned senior counsel has drawn our attention to
other cases to substantiate her contention that Satyanarayana had not
taken note of the consistent view taken by the Supreme Court. We are
not delving into the controversy any further. We are of the opinion that
the 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 it
not permissible to draw inferential deduction of culpability/guilt of
a public servant under Section 7 and Section 13(1)(d) read with
Section 13(2) of Prevention of Corruption Act, 1988 based on
other evidence adduced by the prosecution.”
15. In the light of the consistent view taken by this Court in various
judgments, we have some reservation in respect of the observation and
findings recorded by this Court in P. Satyanarayana Murthy v. District
Inspector of Police, State of Andhra Pradesh and another (2015) 10
SCC 152.  The matter be placed before the Hon’ble Chief Justice for
appropriate orders.
Ankit Gyan
Matter referred to larger Bench.