B. JAYARAJversusSTATE OF A.P.

                         [2014) 4 S.C.R. 554


A                            8. JAYARAJ
                                  v.
                           STATE OF A.P.
                 (Criminal Appeal No. 696 of 2014)
                          MARCH 28, 2014
B
          [P. SATHASIVAM, CJI, RANJAN GOGOi AND
                      N.V. RAMANA, JJ.)

        Prevention of Corruption Act, 1988 - ss. 7 and
c 13(1)(d)(i)(ii) r/w s. 13(2) and 20 -Complainant had a fair price
    shop - He alleged that appellant, Manda/ Revenue officer,
    demanded bribe from him for release of PDS items -
    Conviction of appellant u/ss. 7 and 13(1)(d)(i)(ii) r/w s.13(2)
    by the Courts below - Justification - Held: Not justified - PW-
D   2, the complainant, did not support the prosecution case
    insofar as demand of illegal gratification by appellant is
    concerned - Prosecution did not examine any other witness,
    present at the time when the money was allegedly handed
    over to appellant by the complainant, to prove that the same
E   was pursuant to any demand made by the appellant - When
    the complainant himself had disowned what he had stated in
    the initial complaint, and there is no other evidence to prove
    that appellant had made any demand, the evidence of PW-1
    (panch witness) and the contents of the initial complaint
F   cannot be relied upon - Only other material available is
    recovery of tainted currency notes from possession of
    appellant - However, mere possession and recovery of
    currency notes from appellant without proof of demand will not
    bring home the offence uls. 7 - Proof of acceptance of illegal
    gratification can follow only if there is proof of demand - As
G   the same is lacking, primary facts on the basis of which legal
    presumption u/s.20 can be drawn against the appellant are
    wholly absent.


                                 554
H
            B. JAYARAJ v. STATE OF A.P.                555

     The appellant was working as a Mandal Revenue            A
officer (MRO). PW-2 had a fair price shop. The
prosecution case was that PW-2 allegedly approached
the appellant for release of essential commodities against
his shop whereafter he demanded bribe to issue the
release order. The Special Judge for SPE & ACB cases,         B
City Civil 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. The conviction was
affirmed by the High Court, and therefore the present
appeal.                                                       c
    Allowing the appeal, the Court

     HELD:1. The conviction of the appellant cannot be
sustained either under Section 7 or under 13(1)(d)(i)(ii)
read with Section 13(2) of the Prevention of Corruption       D
Act, 1988. [Para 10] [561-F-G]

     2. PW-2, the complainant, did not support the
prosecution case. He disowned making the complaint
(Exbt.P-11) and had stated in his deposition that the         E
amount of Rs.250/- was paid by him to the appellant with
a request that the same may be deposited with the bank
as fee for the renewal of his licence. He was, therefore,
declared hostile. However, PW-1 (panch witness) had
testified that after being summoned by LW-9, on
                                                              F
13.11.1995, the contents of Exhibit P-11 (complaint) filed
by PW-2 were explained to him in the presence of the
complainant who acknowledged the fact that the
appellant had demanded a sum of Rs.250/- as illegal
gratification for release of the PDS items. It is on the
aforesaid basis that the liability of the accused-appellant   G
for commission of the offences alleged was held to be
proved. In doing so, the trial court as well as the High
Court also relied on the provisions of Section 20 of the
Act to draw a legal presumption as regards the motive or
reward for doing or forbearing to do any official act after   H
    556     SUPREME COURT REPORTS               [2014] 4 S.C.R.


A finding acceptance of illegal gratification by the accused-
  appellant. [Para 6) [559-F-H; 560-A-C]

       3. Insofar as the offence under Section 7 of the
  Prevention of Corruption Act, 1988 is concerned, it is a
  settled position in law that demand of illegal gratification
8
  is sine qua non to constitute the said offence and mere
  recovery of currency notes cannot constitute the offence
  under Section 7 unless it is proved beyond all reasonable
  doubt that the accused voluntarily accepted the money
C knowing it to be a bribe. [Para 7) [560-C-E]
         C.M. Sharma vs. State of A.P. (2010) 15 SCC 1: 2010
    (13) SCR 1105 and C.M. Girish Babu vs. C.B.I (2009) 3 SCC
    779: 2009 (2) SCR 1021 - relied on.

0        4. PW2 did not support the prosecution case insofar
    as demand by the accused is concerned. The
    prosecution has not examined any other witness, present
    at the time when the money was allegedly handed over
    to the accused by the complainant, to prove that the
E   same was pursuant to any demand made by the accused.
    When the complainant himself had disowned what he had
    stated in the initial complaint (Exbt.P-11) before LW-9, and
    there is no other evidence to prove that the accused had
    made any demand, the evidence of PW-1 and the
    contents of Exhibit P-11 cannot be relied upon to come
F   to the conclusion that the above material furnishes proof
    of the demand allegedly made by the accused. The only
    other material available is the recovery of the tainted
    currency notes from the possession of the accused. Mere
    possession and recovery of the currency notes from the
G   accused without proof of demand will not bring home the
    offence under Section 7. The above also will be
    conclusive insofar as the offence under Section
    13(1)(d)(i)(ii) is concerned as in the absence of any proof
    of demand for illegal gratification, the use of corrupt or
H   illegal means or abuse of position as a public servant to
            B. JAYARAJ v. STATE OF A.P.                 557

obtain any valuable thing or pecuniary advantage cannot        A
be held to be established. [Para 8] [560-E-G; 561-A-C]
     5. Insofar as the presumption permissible to be
drawn under Section 20 of the Act is concerned, such
presumption can only be in respect of the offence under
Section 7 and not the offences under Section 13(1)(d)(i)(ii)   8
of the Act. In any event, it is only on proof of acceptance
of illegal gratification that presumption can be drawn
under Section 20 of the Act that such gratification was
received for doing or forbearing to do any official act.
Proof of acceptance of illegal gratification can follow only   C
if there is proof of demand. As the same is lacking in the
present case the primary facts on the basis of which the
legal presumption under Section 20 can be drawn are
wholly absent. [Para 9] [561-D-F]
                                                               D
                    Case Law Reference:
    2010 (13) SCR 1105       relied on            Para 7
    2009 (2) SCR 1021        relied on            Para 7
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal           E
No. 696 of 2014.
    From the Judgment & Order dated 25.04.2011 of the High
Court of Andhra Pradesh at Hyderabad in Criminal Appeal No.
99 of 2005.                                                    F
    Guntur Prabhakar for the Appellant.
      Mayur R. Shah, D. Mahesh Babu, Suchitra Hrangkhawl,
Amjit Maqbool, Amit K. Nain, B. Ramakrishna Rao, Aditya Jain
for the Respodent.                                             G
    The Judgment of the Court was delivered by
    RANJAN GOGOi, J. 1. Leave granted.
                                                               H
    558     SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A       2. This appeal is directed against the judgment and order
  dated 25.04.2011 passed by the High Court of Andhra Pradesh
  affirming the order of conviction passed by the Additional
  Special Judge for SPE & ACB cases, City Civil Court
  Hyderabad, whereby the accused appellant has been found
8 guilty of commission of the offences under Sections 7 and 13
  (1 )(d)(i)(ii) read with Section 13(2) of the Prevention of
  Corruption Act, 1988 (for short "the Act"). The accused
  appellant has been sentenced to undergo rigorous
  imprisonment for one year for each of the offences and also to
C pay a fine of Rs.1000/- in default to suffer simple imprisonment
  for three months more.

          3. According to the prosecution, the accused appellant
    was, at the relevant point of time, working as a Manda! Revenue
    officer (MRO) in the Ranga Reddy District of the State of
D   Andhra Pradesh. The complainant K.Venkataiah (PW-2) had
    a fair price shop in Dadupally village. On 8.11.1995, the
    complainant, it is alleged, had approached the accused
    appellant for release of essential commodities against his shop
    for the month of November, 1995. The accused appellant, it is
E   claimed, demanded a bribe of Rs.250/- to issue the release
    order. As the complainant was not willing to pay the said
    amount, he had approached listed witness No.9 K.Narsinga
    Rao, (since deceased) Deputy Superintendent of Police, ACB,
    Hyderabad on 9.11~1995 and submitted a written complaint
F   (Exbt.P-11) before him. According to the prosecution, LW-9 after
    verifying the contents of the complaint registered a case and
    issued Exhibit P-12 (FIR). LW-9 directed the complainant to
    come with the bribe amount on 13.11.995. It is also alleged that
    LW-9 summoned PW-1, S. Hanuma Reddy, Deputy Director
G   of Insurance to act as a panch witness and explained the
    details of the complaint (Exbt.P-11) to him. Furthermore,
    according to the· prosecution, LW-9 got the currency notes
    treated with phenolphthalein powder and also explained to PW-
    1 the significance of the sodium carbonate solution test. The
H   details of the trap that was planned was explained to all
              8. JAYARAJ v. STATE OF A.P.                     559
                   [RANJAN GOGOi, J.]
concerned including the complainant. Accordingly, the plan was       A
put into execution and on receipt of the pre-arranged signal to
the trap laying officer, the police party headed by LW-9, which
also included PW-5, rushed into the office of the accused
appellant. Thereafter, according to the prosecution, the sodium
carbonate solution test was conducted on the right hand fingers      B
of the accused as well as the right shirt pocket. Both tests
proved to be positive. The tainted currency notes were
recovered from the possession of the accused.

     4. Chargesheet was filed against the accused-appellant          C
on completion of investigation. Upon grant of sanction for
prosecution, cognizance of the offences alleged was taken and
charges were framed to which the accused pleaded not guilty.
In the course of the trial 5 witnesses were examined on behalf
of the prosecution and 12 documents (Exbt. P-1 to P-12)
besides 10 material objects (MOs 1 to 10) were exhibited. The        D
plea of the accused was that on the date of the trap, PW-2, the
complainant had put the currency notes in his shirt pocket with
a request to have the same deposited in the bank as fee for
renewal of the licence of the complainant. It was at this point of
time that the police party had come and seized the currency          E
notes after taking the same from his pocket.

     5. We have heard Mr. Guntur Prabhakar, learned counsel
for the appellant and Mr. Mayur R. Shah, learned counsel
appearing on behalf of the respondent-State.                         F

     6. PW-2, the complainant, did not support the prosecution
case. He disowned making the complaint (Exbt.P-11) and had
stated in his deposition that the amount of Rs.250/- was paid
by him to the accused with a request that the same may be
deposited with the bank as fee for the renewal of his licence.       G
He was, therefore, declared hostile. However, PW-1 (panch
witness) had testified that after being summoned by LW-9, K.
Narsinga Rao, on 13.11.1995, the contents of Exhibit P-11
(complaint) filed by the complainant PW-2 were explained to
him in the presence of the complainant who acknowledged the          H
    560       SUPREME COURT REPORTS                [2014) 4 S.C.R.


A fact that the accused appellant had demanded a sum of Rs.250/
  - as illegal gratification for release of the PDS items. It is on
  the aforesaid basis that the liability of the accused-appellant
  for commission of the offences alleged was held to be proved,
  notwithstanding the fact that in his evidence the complainant
B PW-2 had not supported the prosecution case. In doing so, the
  learned trial court as well as the High Court also relied on the
  provisions of Section 20 of the Act to draw a legal presumption
  as regards the motive or reward for doing or forbearing to do
  any official act after finding acceptance of illegal gratification
c by the accused-appellant.

        7. In so far as the offence under Section 7 is concerned, it
  is a settled position in law that demand of illegal gratification
  is sine qua non to constitute the said offence and mere
  recovery of currency notes cannot constitute the offence under
D Section 7 unless it is proved beyond all reasonable doubt that
  the accused voluntarily accepted the money knowing it to be a
  bribe. The above position has been succinctly laid down in
  several judgments of this Court. By way of illustration reference
  may be made to the decision in C.M. Sharma Vs. State of
E A.P. 1 and C.M. Girish Babu Vs. C.8./. 2

       8. In the present case, the complainant did not support the
  prosecution case in so far as demand by the accused is
  concerned. The prosecution has not examined any other
F witness, present at the time when the money was allegedly
  handed over to the accused by the complainant, to prove that
  the same was pursuant to any demand made by the accused.
  When the complainant himself had disowned what he had
  stated in the initial complaint (Exbt.P-11) before LW-9, and there
  is no other evidence to prove that the accused had made any
G demand, the evidence of PW-1 and the contents of Exhibit P-
  11 cannot be relied upon to come to the conclusion that the
  above material furnishes proof of the demand allegedly made

    1.   c2010) 1s sec 1.
H . 2.   c2009) 3 sec 779.
              B. JAYARAJ v. STATE OF A.P.                       561
                   [RANJAN GOGOi, J.]
by the accused. We are, therefore, inclined to hold that the            A
learned trial court as well as the High Court was not correct in
holding the demand alleged to be made by the accused as
proved. The only other material available is the recovery of the
tainted currency notes from the possession of the accused. In
fact such possession is admitted by the accused himself. Mere           B
possession and recovery of the currency notes from the
accused without proof of demand will not bring home the
offence under Section 7. The above also will be conclusive in
so far as the offence under Section 13(1 )(d)(i)(ii) is concerned
as in the absence of any proof of demand for illegal                    c
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 established.

      9. In so far as the presumption permissible to be drawn
under Section 20 of the Act is concerned, such presumption              D
can only be in respect of the offence under Section 7 and not
the offences under Section 13(1 )(d)(i)(ii) of the Act. In any event,
it is only on proof of acceptance of illegal gratification that
presumption can be drawn under Section 20 of the Act that such
gratification was received for doing or forbearing to do any            E
official act. Proof of acceptance of illegal gratification can follow
only if there is proof of demand. As the same is lacking in the
present case the primary facts on the basis of which the legal
presumption under Section 20 can be drawn are wholly absent.
                                                                        F
     10. For the aforesaid reasons, we cannot sustain the
conviction of the appellant either under Section 7 or under
13(1)(d)(i)(ii) read with Section 13(2) of the Act. Accordingly,
the conviction and the sentences imposed on the accused-
appellant by the trial court as well as the High Court by order         G
dated 25.4.2011 are set aside and the appeal is allowed.

B.B.B.                                            Appeal allowed.


                                                                        H