Proof of demand must in bribery cases

Satyanarayana Murthy v. Dist. Inspector of Police and Anr.

A complaint was filed against the appellant, Assistant Director, Commissionerate of Technical Education, Hyderabad, alleging that he had demanded money by way of illegal gratification for effecting renewal of the recognition of his (complainant) typing institute. Acting on the complaint, a case was registered and a trap was laid and the tainted currency notes were recovered, in the process thereof, from the possession of the appellant.

The trial court, convicted the appellant under Sections 7 and 13(1)(d)(i) & (ii) read with Section 13(2) of the Prevention of Corruption Act 1988 (for short hereinafter referred to as “the Act”). The High Court upheld his conviction under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act, but acquitted the appellant of the charge under Section 7 of the Act.

The contention of the appellant was that the prosecution had failed to prove any demand for the alleged illegal gratification involved and, thus, the vitally essential ingredient of the offences both under Sections 7 and 13 of the Act was absent. Even assuming without admitting that the recovery of  the tainted notes from the appellant had been established, sans the proof of demand which is a sine qua non for an offence under the Sections, the appellant’s conviction was unsustainable. It was also argued that the money shown to have been recovered from the possession of the appellant was by no means an illegal gratification demanded by him, but was towards fees for renewal of the recognition of the complainant’s typing institute together with penalty and incidental expenses.

Reliance was also placed on A. Subair vs. State of Kerala (2009)6 SCC 587, where the Supreme Court ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by  proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. Also in State of Kerala and another vs. C.P. Rao (2011) 6 SCC 450, it was held that mere recovery by itself, 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 be sustained. In B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55 the Supreme Court held that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. In the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. In Sujit Biswas vs. State of Assam (2013)12 SCC 406 it was held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. The Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.

Hence in the present case, the Supreme Court held that proof of demand of illegal gratification, is the gravamen of the offence under Sections 7 and 13(1) (d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these 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 or 13 of the Act would not entail his conviction thereunder. The prosecution, had failed to prove unequivocally, the demand of illegal gratification and, thus, the appeal was allowed.