In CR.A. No.1669 of 2009-SC- Allegation of demand of gratification & acceptance made by public servant has to be established beyond reasonable doubt; In absence of direct evidence, demand or acceptance can be proved by circumstantial evidence: SC
Justices Abhay S. Oka & Rajesh Bindal [17-03-2023]

Read Judgment: Neeraj Dutta v. State (Govt. of N.C.T. of Delhi) 

Tulip Kanth

New Delhi, March 21, 2023: In a case alleging demand of gratification for installing a new electricity meter, the Supreme Court has set aside the judgment of conviction passed against the accused under the Prevention of Corruption Act, 1988, after noting that there were no circumstances brought on record which would prove the demand for gratification. 

“Every demand made for payment of money is not a demand for gratification. It has to be something more than mere demand for money”, the Division Bench of Justice Abhay S. Oka and Justice Rajesh Bindal asserted.

The appellant,in this matter, was convicted for the offences punishable under Section 7 and clauses (i) and (ii) of Section13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 . The co-accused, Yogesh Kumar, was convicted for the offence punishable under Section 12 but he was acquitted by the High Court. 

In his complaint, the complainant stated that he was doing business of sale and purchase of cars and there was no electricity meter installed in his shop. Therefore, in the year 1996, he applied for an electricity meter. In the complaint, he stated that pursuant to the application a meter was installed in his shop and after a few months, he found that the meter was removed. 

As the shopkeepers in the area had got the electricity meters installed through the appellant, he met her. In 2000, he received a telephone call from the appellant who was working as an Inspector in the D.V.B./electricity department in the local area. When the complainant met her, she demanded a sum of Rs 15,000 for getting the meter installed and ultimately after negotiations, she settled the demand at Rs 10,000. 

The complainant stated that he had no option but to accept her demand for a bribe. On the basis of the aforesaid complaint, a trap was laid. The appellant came with the co- accused and demanded the documents and bribe of Rs 10,000, which was paid by the complainant. 

The Special Court held that there was sufficient circumstantial evidence on record to prove the guilt of the appellant. The order of conviction of the Special Court as regards the appellant had been confirmed by the High Court in the impugned judgment and thus, the appellant approached the Apex Court.

On the issue of  drawing inferential guilt of public servant based on other evidence adduced by the prosecution, the Constitution Bench in its judgment in Neeraj Dutta v. State (govt. Of N.c.t. Of Delhi) had held that in absence of the complaint’s testimony in a prosecution for offences punishable under Sections 7 and 13(2), the prosecution can rely even upon circumstantial evidence to prove the demand of gratification. 

Referring to the judgment of the Constitution Bench and sections 7 & 20, the Bench opined that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption, the Bench added.

On the issue of circumstantial evidence in such cases, the Bench stated that the Constitution Bench had laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. 

“When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused”, the Bench further noted.

The Bench noticed that this was not a case where a specific demand of gratification for providing electricity meter was made by the appellant to the complainant in the presence of the shadow witness. The shadow witness had not stated that there was any discussion in his presence between the appellant and the complainant on the basis of which an inference could have been drawn that there was a demand made for gratification by the appellant. The witness had no knowledge about what transpired between the complainant and the appellant earlier and also had no personal knowledge about the purpose for which the cash was allegedly handed over by the complainant to the appellant.

“Apart from the evidence of PW-5, there is no other evidence that is pressed into service by the prosecution for proving the demand by the appellant. Even taking the statements of PW-5 in the examination-in-chief as correct, it is impossible to even infer that the demand of Rs.10,000/- was made by the appellant by way of gratification”, the Bench held.

As per the Top Court, in absence of proof of application made by complainant  for providing electricity meter, the prosecution's case regarding demand of bribe for installing new electricity meter became doubtful. Moreover, considering that till April 24, 2000, the complainant did not register a complaint regarding commission of offence, the Bench opined that this made the prosecution's case regarding the demand of gratification on April 17, 2000 for installing a new electricity meter extremely doubtful.

Thus, observing that the ingredients of the offence under Section 7 were not established and the offence under Section 13(1)(d) wouldn’t be attracted, the Bench allowed the appeal.