NEERAJ DUTTAversusSTATE (GOVT. OF N.C.T. OF DELHI)

                        [2023] 2 S.C.R. 997                             997


                         NEERAJ DUTTA                                   A
                                 v.
              STATE (GOVT. OF N.C.T. OF DELHI)
                (Criminal Appeal No. 1669 of 2009)
                         MARCH 17, 2023                                 B
        [ABHAY S. OKA AND RAJESH BINDAL, JJ.]
       Prevention of Corruption Act, 1988 : ss. 7, 13(1)(d), 13(2) –
Proof of demand of illegal gratification – Prosecution case that a
trap was laid and the appellant-Electricity Inspector came with the
                                                                        C
co-accused and demanded the documents and bribe of
which was paid by the complainant – Special Court holding that
there was sufficient circumstantial evidence on record to prove the
guilt of the appellant, convicted her for the offence punishable u/
ss. 7 and 13(i)(d)(i) and (ii) rw 13(2) – High Court upheld the same
– On appeal, held : Apart from the evidence of PW-5-shadow witness,     D
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 – Every demand made for
                                                                        E
payment of money is not a demand for gratification – It has to be
something more than mere demand for money – On facts, no
circumstances brought on record which would prove the demand
for gratification – Thus, the ingredients of the offence u/s. 7 not
established and consequently, the offence u/s. 13(1)(d) not attracted
– Judgment passed by the courts below set aside.                        F
      ss. 7, 13(1)(d), 13(2) – Illegal gratification – Demand and
acceptance of – Modes of proof – Held: In the absence of direct
evidence, the demand and/or acceptance can always be proved by
other evidence such as circumstantial evidence.
      Allowing the appeal, the Court                                    G

      HELD: 1.1 The proof of demand within the meaning of
Section 7 cannot be a simpliciter demand for money but it has to
be a demand of gratification other than legal remuneration. All
that PW-5 says is when the appellant visited the shop of the
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                                997
998            SUPREME COURT REPORTS                      [2023] 2 S.C.R.


A     complainant, she asked the complainant to give papers regarding
      the electricity meter and Rs.10,000/- to her by telling him that
      she was in a hurry. This is 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. PW-5 has not stated that there was any discussion in his
B
      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. PW-5 had admittedly no personal
C     knowledge about the purpose for which the cash was allegedly
      handed over by the complainant to the appellant. [Para 16][1011-
      C-F]
            1.2. As per the version of the appellant in her statement
      under Section 313 of the Code of Criminal Procedure, 1973, on
D     17th April 2000, she was working as an LDC in DVB office. On
      that day, she was busy with her official duty in a collection drive
      organized by the department to collect dues from the consumers.
      Her explanation is that the complainant was her neighbour and
      he wanted her assistance to deposit electricity charges. She stated
      that earlier, she had a transaction of sale and purchase of a car
E     through the complainant. She has also stated that the complainant
      was a history-sheeter and there were three First Information
      Reports (FIRs) registered against him. In this context, PW-5
      was questioned in the cross-examination. PW-5 did not confirm
      the correctness of the suggestion but stated that he was not in a
F     position to deny the same. In fact, PW-7, the investigation officer,
      deposed that cash of Rs.71,900/– was found in the appellant’s
      car. This lends support to the defence that there was a recovery
      drive conducted by 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
G     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.
      Every demand made for payment of money is not a demand for
      gratification. It has to be something more than mere demand for
H     money. [Para 17][1011-F-H; 1012-A, D-E]
   NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)                 999


       1.3 In the complaint filed by the deceased complainant on    A
17th April 2000, in the form of his statement recorded by the
Anti- Corruption Bureau, he has stated that pursuant to the
application dated 6th May 1996, a meter was installed in his shop
and after a few months, he found that the meter was removed.
However, the Special Court has observed in paragraph 19 of the
                                                                    B
impugned judgment that a complaint regarding a stolen electricity
meter was registered at the instance of the complainant on 25th
April 2000. Thus, the grievance regarding stolen meter was made
by the complainant 8 days after the alleged demand for bribe. In
fact, PW-7 admitted that the complainant did not produce a copy
of the application made by him for providing electricity meter.     C
PW-7 further stated that the complainant did not clearly tell him
that he had given such application. In absence of proof of making
such application, the prosecution’s case regarding demand of
bribe for installing new electricity meter becomes doubtful.
Moreover, till 24th April 2000, the complainant did not register
                                                                    D
a complaint regarding commission of offence. This makes the
prosecution’s case regarding the demand of gratification on 17th
April 2000 for installing a new electricity meter extremely
doubtful. [Para 18][1012-F-H; 1013-A-B]
      1.4 There are no circumstances brought on record which
would prove the demand for gratification. Therefore, the            E
ingredients of the offence under Section 7 of the PC Act were not
established and consequently, the offence under Section 13(1)(d)
will not be attracted. The impugned judgment and the judgment
of the Special Court is set aside as also the conviction and
sentence of the appellant. [Paras 19, 20][1013-B-C]                 F
     Neeraj Dutta v State (Govt of NCT of Delhi) 2022
     SCCOnline SC 1724 – followed.
     B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC
     55 : [2014] 4 SCR 554; P. Satyanarayana Murthy v.
     District Inspector of Police, State of Andhra Pradesh          G
     & Anr. (2015) 10 SCC 152; M. Narsinga Rao v. State
     of A.P. (2001) 1 SCC 691 : [2000] 5 Suppl. SCR 584;
     N. Vijayakumar v. State of Tamil Nadu (2021) 3 SCC
     687 – referred to.
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1000            SUPREME COURT REPORTS                          [2023] 2 S.C.R.


 A                             Case Law Reference
       [2014] 4 SCR 554                    referred to          Para 4
       (2015) 10 SCC 152                   referred to          Para 4
       [2000] 5 Suppl. SCR 584             referred to          Para 4
 B     (2021) 3 SCC 687                    referred to          Para 11
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       1669 of 2009.
             From the Judgment and Order dated 02.04.2009 of he High Court
       of Delhi at New Delhi in CRLA No. 04 of 2007.
 C
            S. Nagamuthu, Sr.Adv., Mr. Satinder S. Gulati, Raj Kishor
       Choudhary, Advs. for the Appellant.
             Ms. Aishwarya Bhati, Jayant K. Sud, A.S.Gs., Shreekant Neelappa
       Terdal, Ms. Snidha Mehra, Ms. Rukhmini Bobde, Sanjay Kr. Tyagi, Adit
 D     Khorana, Shubranshu Padhi, Udai Khanna, Ms. Poornima Singh,
       Ms. Manisha Chava, Ms. B.L.N.Shivani, Ms. Shivika Mehra, Advs. for
       the Respondent.
             The Judgment of the Court was delivered by
             ABHAY S. OKA, J.
 E
             FACTUAL ASPECTS
              1. The appellant was convicted by the Special Judge, Delhi 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
 F     Act, 1988 (for short, ‘the PC Act’). The co-accused, Mr. Yogesh Kumar,
       was convicted by the Special Judge for the offence punishable under
       Section 12 of the PC Act. The co-accused was acquitted by the High
       Court. The appellant was sentenced to undergo a rigorous imprisonment
       for a period of three years and to pay a fine of Rs.15,000/- for the
       offence punishable under sub-section (2) of Section 13 of the PC Act.
 G     For the offence punishable under Section 7, she was sentenced to undergo
       rigorous imprisonment for two years and to pay a fine of Rs.5,000/-.
       Sentences in default of payment of fine were also imposed. The conviction
       of the appellant has been upheld by the High Court by the impugned
       judgment.
 H
    NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)                             1001
                  [ABHAY S. OKA, J.]

        2. The complainant – Mr. Ravijit Singh died before the trial             A
commenced. In fact, PW-7, the Investigation Officer, deposed that the
complainant was murdered. In his complaint, the complainant stated that
he was doing business of sale and purchase of cars in a shop situated at
Vikas Puri, New Delhi. His case is that there was no electricity meter
installed in his shop and therefore, on 6th May 1996 he applied for an
                                                                                 B
electricity meter. In the complaint filed by him on 17th April 2000, in the
form of his statement recorded by the Anti- Corruption Bureau, he stated
that pursuant to the application dated 6th May 1996, 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. On 17th April 2000, he received a             C
telephone call at 7:30 a.m. from the appellant who was working as an
Inspector in the D.V.B./electricity department in the local area. She
called him at her residence to discuss the issue of the electricity meter.
At 8:00 a.m., when the complainant met her, she demanded a sum of
Rs.15,000/- for getting the meter installed and ultimately after negotiations,
                                                                                 D
she settled the demand at Rs.10,000/-. According to the complainant,
the appellant stated that she would come to his shop between 3:00 and
4:00 p.m. when the complainant should hand over the papers for the
electricity meter and Rs.10,000/- as a bribe. The complainant stated that
he had no option but to accept her demand for a bribe.
        3. The prosecution’s case is that on the basis of the aforesaid          E
complaint, a trap was laid. PW-5, Mr. S. K. Awasthi, was the shadow
witness. When he along with the complainant as well as members of the
raiding party visited the complainant’s shop at 3:50 p.m., the appellant
was not present there. At about 4:40 p.m., a telephone call was received
by the complainant that the appellant would come at around 5:30/6:00             F
p.m. At 5:20 p.m., 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. In
fact, a finding was recorded on the basis of circumstantial evidence that
the demand and acceptance were proved. The order of conviction of                G
the learned Special Court as regards the appellant has been confirmed
by the High Court in the impugned judgment.
      4. While hearing this appeal, a bench of two Hon’ble Judges of
this Court came to a conclusion that the decisions of this Court of the
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1002             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


 A     benches of three Hon’ble Judges in the cases of B. Jayaraj v. State of
       Andhra Pradesh1 and P. Satyanarayana Murthy v. District Inspector
       of Police, State of Andhra Pradesh & Anr.2 were in conflict with an
       earlier three-Judge bench’s decision in the case of M. Narsinga Rao v.
       State of A.P.3 Accordingly, the following question was referred to the
       larger bench:
 B
             “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
 C           other evidence adduced by the prosecution.”
              5. The above-mentioned question was referred for decision to a
       Constitution Bench, which disposed of the reference by the judgment
       dated 15th December 20224. Broadly, the Constitution Bench held that in
       absence of the complaint’s testimony in a prosecution for offences
 D     punishable under Sections 7 and 13(2) of the PC Act, the prosecution
       can rely upon even circumstantial evidence to prove the demand of
       gratification. In paragraph 74 of the said decision, the Constitution Bench
       has summarized its conclusions.
             RIVAL SUBMISSIONS
 E
              6. Shri S. Nagamuthu, the learned senior counsel appearing for
       the appellant submitted that this is a case where there is no evidence of
       demand of illegal gratification by the appellant. The learned senior counsel
       submitted that proof of demand of gratification by a public servant is a
       sine qua non for the offences punishable under Sections 7 and 13(1)(d)
 F     of the PC Act. He submitted that the findings of the Courts are based on
       surmises and conjectures.
              7. Ms. Aishwarya Bhati, the learned Additional Solicitor General
       appearing for the prosecution supported the impugned judgments. She
       submitted that PW-5 has proved the demand. Moreover, on the basis of
 G     the circumstantial evidence, the demand and acceptance were proved.
       She also submitted that once the demand and acceptance are established,
       1
         2014 (13) SCC 55
       2
         2015 (10) SCC 152
       3
         2001 (1) SCC 691
       4
 H       2022 SCCOnline SC 1724
   NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)                          1003
                 [ABHAY S. OKA, J.]

there is a presumption that the acceptance of gratification proves the       A
existence of motive or reward. The learned ASG submitted that no
interference is called for with the impugned judgments.
      LEGAL POSITION
       8. Before we analyze the evidence, we must note that we are
dealing with Sections 7 and 13 of the PC Act as they stood prior to the      B
amendment made by the Act 16 of 2018 with effect from 26th July 2018.
We are referring to Sections 7 and 13 as they stood on the date of
commission of the offence. Section 7, as existed at the relevant time,
reads thus:
      “7. Public servant taking gratification other than legal               C
      remuneration in respect of an official act.—
      Whoever, being, or expecting to be a public servant, accepts or
      obtains or agrees to accept or attempts to obtain from any person,
      for himself or for any other person, any gratification whatever,
      other than legal remuneration, as a motive or reward for doing or      D
      forbearing to do any official act or for showing or forbearing to
      show, in the exercise of his official functions, favour or disfavour
      to any person or for rendering or attempting to render any service
      or disservice to any person, with the Central Government or any
      State Government or Parliament or the Legislature of any State         E
      or with any local authority, corporation or Government company
      referred to in clause (c) of section 2, or with any public servant,
      whether named or otherwise, shall be punishable with
      imprisonment which shall be not less than three years but which
      may extend to seven years and shall also be liable to fine.
                                                                             F
      Explanations.-
      (a) “Expecting to be a public servant”- If a person not expecting
      to be in office obtains a gratification by deceiving others into a
      belief that he is about to be in office, and that he will then serve
      them, he may be guilty of cheating, but he is not guilty of the
                                                                             G
      offence defined in this section.
      (b) “Gratification”. The word “gratification” is not restricted to
      pecuniary gratifications or to gratifications estimable in money.
      (c) “Legal remuneration”- The words “legal remuneration” are
      not restricted to remuneration which a public servant can lawfully     H
1004             SUPREME COURT REPORTS                                 [2023] 2 S.C.R.


 A           demand, but include all remuneration which he is permitted by the
             Government or the organisation, which he serves, to accept.
             (d) “A motive or reward for doing”. A person who receives a
             gratification as a motive or reward for doing what he does not
             intend or is not in a position to do, or has not done, comes within
 B           this expression.
             (e) Where a public servant induces a person erroneously to believe
             that his influence with the Government has obtained a title for
             that person and thus induces that person to give the public servant,
             money or any other gratification as a reward for this service, the
 C           public servant has committed an offence under this section.”
             9. Section 13(1)(d), as existed at the relevant time, reads thus:
             “13.Criminal misconduct by a public servant.—
             (1) A public servantis said to commit the offence of criminal
 D           misconduct,-
             (a) ………………………………
             (b) ……………………………...
             (c) ………………………………
 E           (d) if he,-
                 (i) by corrupt or illegal means, obtains for himself or for any
                 other person any valuable thing or pecuniary advantage; or
                 (ii) by abusing his position as a public servant, obtains for himself
                 or for any other person any valuable thing or pecuniary
 F               advantage; or
                 (iii) while holding office as a public servant, obtains for any
                 person any valuable thing or pecuniary advantage without any
                 public interest; or
             (e) ..................................................”
 G
             The demand for gratification and the acceptance thereof are sine
       qua non for the offence punishable under Section 7 of the PC Act.
             10. The Constitution Bench4 was called upon to decide the question
       which we have quoted earlier. In paragraph 74, the conclusions of the
 H     Constitution have been summarised, which read thus:
NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)                          1005
              [ABHAY S. OKA, J.]

 “74. What emerges from the aforesaid discussion is summarised            A
 as under:
 (a) Proof of demand and acceptance of illegal gratification
 by a public servant as a fact in issue by the prosecution is a
 sine qua non in order to establish the guilt of the accused
 public servant under Sections 7 and 13(1)(d)(i) and (ii) of              B
 the Act.
 (b) In order to bring home the guilt of the accused, the
 prosecution has to first prove the demand of illegal
 gratification and the subsequent acceptance as a matter of
 fact. This fact in issue can be proved either by direct                  C
 evidence which can be in the nature of oral evidence or
 documentary evidence.
 (c) Further, the fact in issue, namely, the proof of demand
 and acceptance of illegal gratification can also be proved
 by circumstantial evidence in the absence of direct oral and             D
 documentary evidence.
 (d) In order to prove the fact in issue, namely, the demand and
 acceptance of illegal gratification by the public servant, the
 following aspects have to be borne in mind:
 (i) if there is an offer to pay by the bribe giver without there         E
 being any demand from the public servant and the latter simply
 accepts the offer and receives the illegal gratification, it is a case
 of acceptance as per Section 7 of the Act. In such a case, there
 need not be a prior demand by the public servant.
 (ii) On the other hand, if the public servant makes a demand             F
 and the bribe giver accepts the demand and tenders the demanded
 gratification which in turn is received by the public servant, it is a
 case of obtainment. In the case of obtainment, the prior demand
 for illegal gratification emanates from the public servant. This is
 an offence under Section 13(1)(d)(i) and (ii) of the Act.
                                                                          G
 (iii) In both cases of (i) and (ii) above, the offer by the bribe
 giver and the demand by the public servant respectively have
 to be proved by the prosecution as a fact in issue. In other
 words, mere acceptance or receipt of an illegal gratification
 without anything more would not make it an offence under
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1006      SUPREME COURT REPORTS                          [2023] 2 S.C.R.


 A     Section 7 or Section 13(1)(d), (i) and (ii) respectively of the
       Act. Therefore, under Section 7 of the Act, in order to bring
       home the offence, there must be an offer which emanates
       from the bribe giver which is accepted by the public servant
       which would make it an offence. Similarly, a prior demand by
       the public servant when accepted by the bribe giver and in
 B
       turn there is a payment made which is received by the public
       servant, would be an offence of obtainment under Section
       13(1)(d) and (i) and (ii) of the Act.
       (e) The presumption of fact with regard to the demand and
       acceptance or obtainment of an illegal gratification may be
 C     made by a court of law by way of an inference only when the
       foundational facts have been proved by relevant oral and
       documentary evidence and not in the absence thereof. On
       the basis of the material on record, the Court has the discretion to
       raise a presumption of fact while considering whether the fact of
 D     demand has been proved by the prosecution or not. Of course, a
       presumption of fact is subject to rebuttal by the accused and in
       the absence of rebuttal presumption stands.
       (f) In the event the complainant turns ‘hostile’, or has died or is
       unavailable to let in his evidence during trial, demand of illegal
 E     gratification can be proved by letting in the evidence of any other
       witness who can again let in evidence, either orally or by
       documentary evidence or the prosecution can prove the case by
       circumstantial evidence. The trial does not abate nor does it result
       in an order of acquittal of the accused public servant.

 F     (g) In so far as Section 7 of the Act is concerned, on the
       proof of the facts in issue, Section 20 mandates the court to
       raise a presumption that the illegal gratification was for the
       purpose of a motive or reward as mentioned in the said
       Section. The said presumption has to be raised by the court as a
       legal presumption or a presumption in law. Of course, the said
 G     presumption is also subject to rebuttal. Section 20 does not apply
       to Section 13(1)(d) (i) and (ii) of the Act.
       (h) We clarify that the presumption in law under Section 20 of the
       Act is distinct from presumption of fact referred to above in point

 H
      NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)                       1007
                    [ABHAY S. OKA, J.]

         (e) as the former is a mandatory presumption while the latter is    A
         discretionary in nature.”
                                                        (emphasis added)
      The referred question was answered in paragraph 76 of the
aforesaid judgment, which reads thus:
                                                                             B
         “76. Accordingly, the question referred for consideration of this
         Constitution Bench is answered as under:
            In the absence of evidence of the complainant (direct/
            primary, oral/ documentary evidence), it is permissible to
            draw an inferential deduction of culpability/guilt of a public   C
            servant under Section 7 and Section 13(1)(d) read with
            Section 13(2) of the Act based on other evidence adduced
            by the prosecution.”
                                                        (emphasis added)
       11. Even the issue of presumption under Section 20 of the PC Act      D
has been answered by the Constitution Bench by holding that only on
proof of the facts in issue, Section 20 mandates the Court to raise a
presumption that illegal gratification was for the purpose of motive or
reward as mentioned in Section 7 (as it existed prior to the amendment
of 2018). In fact, the Constitution Bench has approved two decisions by
                                                                             E
the benches of three Hon’ble Judges in the cases of B. Jayaraj1 and P.
Satyanarayana Murthy2. There is another decision of a three Judges’
bench in the case of N. Vijayakumar v. State of Tamil Nadu5, which
follows the view taken in the cases of B. Jayaraj 1 and
P. Satyanarayana Murthy2. In paragraph 9 of the decision in the case
of B. Jayaraj1, this Court has dealt with the presumption under Section      F
20 of the PC Act. In paragraph 9, this Court held thus:
         “9. 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 Sections 13(1)(d)(i) and (ii) of the Act. In any     G
         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
5
    2021 (3) SCC 687                                                         H
1008            SUPREME COURT REPORTS                           [2023] 2 S.C.R.


 A           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.”
                                                               (emphasis added)
 B            The presumption under Section 20 can be invoked only when the
       two basic facts required to be proved under Section 7, are proved. The
       said two basic facts are ‘demand’ and ‘acceptance’ of gratification.
       The presumption under Section 20 is that unless the contrary is proved,
       the acceptance of gratification shall be presumed to be for a motive or
 C     reward, as contemplated by Section 7. It means 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
 D     rebut the presumption.
             12. In the case of N. Vijayakumar5, another bench of three
       Hon’ble Judges dealt with the issue of presumption under Section 20
       and the degree of proof required to establish the offences punishable
       under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section
 E     13(2) of PC Act. In paragraph 26, the bench held thus:
             “26. It is equally well settled that mere recovery by itself cannot
             prove the charge of the prosecution against the accused. Reference
             can be made to the judgments of this Court in C.M. Girish Babu
             v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2
 F           SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B. Jayaraj v.
             State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] In the
             aforesaid judgments of this Court while considering the case
             under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of
             Corruption Act, 1988 it is reiterated that to prove the
 G           charge, it has to be proved beyond reasonable doubt that
             the accused voluntarily accepted money knowing it to be
             bribe. Absence of proof of demand for illegal gratification and
             mere possession or recovery of currency notes is not sufficient to
             constitute such offence. In the said judgments it is also held that
             even the presumption under Section 20 of the Act can be drawn
 H
    NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)                           1009
                  [ABHAY S. OKA, J.]

      only after demand for and acceptance of illegal gratification is         A
      proved. It is also fairly well settled that initial presumption of
      innocence in the criminal jurisprudence gets doubled by acquittal
      recorded by the trial court.”
                                                        (emphasis added)
      Thus, the demand for gratification and its acceptance must be            B
proved beyond a reasonable doubt.
        13. Section 7, as existed prior to 26th July 2018, was different
from the present Section 7. The unamended Section 7 which is applicable
in the present case, specifically refers to “any gratification”. The
substituted Section 7 does not use the word “gratification”, but it uses a     C
wider term “undue advantage”. When the allegation is of demand of
gratification and acceptance thereof by the accused, it must be as a
motive or reward for doing or forbearing to do any official act. The fact
that the demand and acceptance of gratification were for motive or
reward as provided in Section 7 can be proved by invoking the presumption      D
under Section 20 provided the basic allegations of the demand and
acceptance are proved. In this case, we are also concerned with the
offence punishable under clauses (i) and (ii) Section 13(1)(d) which is
punishable under Section 13(2) of the PC Act. Clause (d) of sub-section
(1) of Section 13, which existed on the statute book prior to the amendment
of 26th July 2018, has been quoted earlier. On a plain reading of clauses      E
(i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of
illegal gratification will be necessary to prove the offences under clauses
(i) and (ii) of Section 13(1)(d). In view of what is laid down by the
Constitution Bench, in a given case, the demand and acceptance of illegal
gratification by a public servant can be proved by circumstantial evidence     F
in the absence of direct oral or documentary evidence. While answering
the referred question, the Constitution Bench has observed that it is
permissible to draw an inferential deduction of culpability and/or guilt of
the public servant for the offences punishable under Sections 7 and
13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in
absence of direct evidence, the demand and/or acceptance can always            G
be proved by other evidence such as circumstantial evidence.
      14. The allegation of demand of gratification and acceptance made
by a public servant has to be established beyond a reasonable doubt.
The decision of the Constitution Bench does not dilute this elementary
                                                                               H
1010             SUPREME COURT REPORTS                           [2023] 2 S.C.R.


 A     requirement of proof beyond a reasonable doubt. The Constitution Bench
       was dealing with the issue of the modes by which the demand can be
       proved. The Constitution Bench has 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
 B
       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. Therefore, in this
       case, we will have to examine whether there is any direct evidence of
 C     demand. If we come to a conclusion that there is no direct evidence of
       demand, this Court will have to consider whether there is any
       circumstantial evidence to prove the demand.
             CONSIDERATION OF THE EVIDENCE ON RECORD
              15. Now, coming to the evidence on record, according to the
 D     prosecution, the direct evidence is in the form of evidence of PW-5 –
       Mr. S.K. Awasthi. In this case, the complainant had died and therefore,
       he could not be examined. The raiding party consisted of PW-5, Mr.
       S.K. Awasthi, an Officer in Irrigation Department; PW-6, Mr. O.D.
       Yadav, Traffic Inspector and PW-7, Mr. Niranjan Singh, ACP. Going by
 E     the complaint which could not be proved through the complainant, it is
       the case of the prosecution that the first demand was made by the
       appellant to the complainant in the morning of 17th April 2000 when he
       met her at her residence. There was no charge framed on the basis of
       this demand. According to the prosecution’s case, the second demand
       was made during the trap. There is absolutely no evidence about the
 F     first demand made in the house of the appellant as no one except the
       complainant was present there. According to the prosecution’s case,
       PW-5 was the witness to the second demand made by the appellant on
       17th April 2000 at around 5:20 p.m. PW-5 stated in his evidence that
       though the complainant had informed the trap party that the appellant
 G     will be visiting his shop at about 3:50 p.m., the appellant did not turn up.
       Subsequently, a telephone call was received by the complainant informing
       that she would come by 5:30/6:00 p.m. Ultimately, according to the case
       of PW-5, at about 5:20 p.m., the appellant along with the co-accused
       came to the Complainant’s shop. The version of PW-5, which according
       to the prosecution constitutes demand, reads thus:
 H
    NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)                          1011
                  [ABHAY S. OKA, J.]

      “Mrs. Neeraj Dutta asked the complainant to give papers                 A
      regarding his electricity meter and Rs.10,000/- to her as
      she was in a hurry. Complainant handed over the documents of
      his electricity meter and treated GC Notes of Rs.10,000/- to Mrs.
      Neeraj Dutta in her right hand after taking the same out of left
      pocket of his shirt. Mrs. Neeraj Dutta handed over said GC Notes
                                                                              B
      to his associate Yogesh Kumar to count and she told the
      complainant that his work would be done.”
                                                        (emphasis added)
       16. Rest of the examination-in-chief deals with the acceptance
by the appellant and recovery. Now the question is whether, on the basis      C
of the evidence on record, the prosecution has proved the demand of
gratification by the accused. When we consider the issue of proof of
demand within the meaning of Section 7, it cannot be a simpliciter demand
for money but it has to be a demand of gratification other than legal
remuneration. All that PW-5 says is when the appellant visited the shop
of the complainant, she asked the complainant to give papers regarding        D
the electricity meter and Rs.10,000/- to her by telling him that she was in
a hurry. This is 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. PW-5 has not stated that there
was any discussion in his presence between the appellant and the              E
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. PW-5 had admittedly no personal knowledge
about the purpose for which the cash was allegedly handed over by the
complainant to the appellant.                                                 F

       17. We may note here that as per the version of the appellant in
her statement under Section 313 of the Code of Criminal Procedure,
1973 (Cr.P.C.), on 17th April 2000, she was working as an LDC in DVB
office. On that day, she was busy with her official duty in a collection
drive organized by the department to collect dues from the consumers.         G
Her explanation is that the complainant was her neighbour and he wanted
her assistance to deposit electricity charges. She stated that earlier, she
had a transaction of sale and purchase of a car through the complainant.
She has also stated that the complainant was a history-sheeter and there
were three First Information Reports (FIRs) registered against him. In        H
1012             SUPREME COURT REPORTS                            [2023] 2 S.C.R.


 A     this context, PW-5 was questioned in the cross-examination. The relevant
       answer given by PW-5 reads thus:
             “I cannot confirm or deny that accused Neeraj Dutta along with
             her cashier and other staff consisting of four five member had
             collected Rs.71,000/- in the single delivery point camp held at Jai
 B           Vihar and she along with her staff members were coming in her
             car and on the way she stopped at the shop of the complainant
             who was her neighbour to collect the balance sale proceeds of
             Rs.1 lac of her previous car from the complainant as she had sold
             the said car through the complainant to M/s. Sagar Motors and
             this payment was to be received by her through complainant from
 C           M/s. Sagar Motors.”
              It is pertinent to note here that PW-5 did not confirm the correctness
       of the suggestion but stated that he was not in a position to deny the
       same. In fact, PW-7, the investigation officer, deposed that cash of
       Rs.71,900/- was found in the appellant’s car. This lends support to the
 D     defence that there was a recovery drive conducted by 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/-
 E     was made by the appellant by way of 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.
              18. There is one more important factual aspect to be noted which
       creates serious doubt about the prosecution’s case. In the complaint
 F     filed by the deceased complainant on 17th April 2000, in the form of his
       statement recorded by the Anti- Corruption Bureau, he has stated that
       pursuant to the application dated 6th May 1996, a meter was installed in
       his shop and after a few months, he found that the meter was removed.
       However, the Special Court has observed in paragraph 19 of the
       impugned judgment that a complaint regarding a stolen electricity meter
 G     was registered at the instance of the complainant on 25th April 2000.
       Thus, the grievance regarding stolen meter was made by the complainant
       8 days after the alleged demand for bribe. In fact, PW-7 admitted that
       the complainant did not produce a copy of the application made by him
       for providing electricity meter. PW-7 further stated that the complainant
 H     did not clearly tell him that he had given such application. In absence of
    NEERAJ DUTTA v. STATE (GOVT. OF N.C.T. OF DELHI)                              1013
                  [ABHAY S. OKA, J.]

proof of making such application, the prosecution’s case regarding demand         A
of bribe for installing new electricity meter becomes doubtful. Moreover,
till 24th April 2000, the complainant did not register a complaint regarding
commission of offence. This makes the prosecution’s case regarding
the demand of gratification on 17th April 2000 for installing a new electricity
meter extremely doubtful.
                                                                                  B
       19. In the present case, there are no circumstances brought on
record which will prove the demand for gratification. Therefore, the
ingredients of the offence under Section 7 of the PC Act were not
established and consequently, the offence under Section 13(1)(d) will
not be attracted.
                                                                                  C
      20. Hence, the appeal must succeed. We set aside the impugned
judgment and the judgment of the Special Court and set aside the
conviction and sentence of the appellant. The bail bonds of the appellant
stand cancelled. Appeal is allowed.

                                                                                  D
Nidhi Jain                                                      Appeal allowed.
(Assisted by : Yash Chavan and Tamana, LCRAs)




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