The Supreme Court on Monday (05 October) has set aside the conviction of a government employee under Sections 7 and 13 of the Prevention of Corruption Act, 1988 (PC Act) who had already served his sentence, holding that the prosecution failed to prove demand and acceptance of illegal gratification.

A bench of Justice Ujjal Bhuyan and Justice Atul S Chandurkar held so while hearing an appeal filed by the government employee who had already served his sentence, and had pursued the appeal only to “get his name cleared.”

The appellant was an Assistant in the District Education Office and the complainant (PW 1) was appointed as an orderly in a Government High School but was not paid his salary. It was alleged that the appellant demanded Rs 5,000 as bribe in 2010 for releasing the salary. Thereafter, the complainant approached the Vigilance Bureau pursuant to which a trap was laid down leading to the arrest of the appellant and recovery of tainted money of Rs 5,000.

The Special Judge convicted the accused (appellant) under Sections 7 and 13(2) in 2021, sentencing him to rigorous imprisonment for four years and a fine of Rs 10,000 for each offence, with concurrent sentence. Thereafter, he appealed before the Jharkhand High Court which dismissed his plea in 2022.

Aggrieved by the High Court's dismissal, the accused (appellant) approached the Supreme Court.

Before the Supreme Court, the appellant apprised the bench that he had undergone the sentence and paid the fine, but wished to pursue the matter to get his name cleared. He argued that demand and acceptance of illegal gratification were not proved beyond reasonable doubt and that the prosecution relied entirely on the uncorroborated testimony of the complainant. It was pointed out that the alleged transaction took place inside the appellant's residence, in the absence of the trap team and without any shadow or independent witness. It was argued that the recovery of tainted money could not prove demand and acceptance, and that the phenolphthalein test (which confirmed that the money recovered was tainted) was conducted belatedly.

On the contrary, the Jharkhand government submitted that the demand and acceptance stood proved on a reading of the evidence and that “mere discrepancies here and there would not be sufficient to dislodge the conviction.” It was also argued that since the appellant had served his sentence, the appeal had become “an academic exercise.”

Perusing the testimonies, the Supreme Court found inconsistencies in the narration of facts. It noted that as per some witnesses the accused was apprehended at his residence, while as per others, he was caught in his office and then taken to his residence, where the money was allegedly recovered from under his pillow.

The Court noted testimony of PW 5 who admitted that the complainant did not hand over the bribe money to the accused in his presence, and that no money was recovered from the accused in the office. Further, PW 8 and PW 9 who are employees of the District Education Office, testified that they had merely signed documents on the direction of vigilance officials. PW 9 stated that “it was on the direction of the police that he deposed that currency notes were recovered from the residence of the accused.” Testimony of Investigating Officer PW 11 was also noted, who admitted that no one had seen the accused taking the money.

Considering the testimonies, the bench noted that none of the witnesses had seen the accused demand the bribe or the complainant hand over the money. It observed that the case rested on the uncorroborated testimony of the complainant. It, thus, reiterated that proof of demand is sine qua non of the offence and that mere recovery of tainted money is not sufficient for conviction.

The bench referred to P Satyanarayana Murthy v State of AP, wherein it was held that “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 Section 7 or 13 of the Act would not entail his conviction thereunder.”

Reference was also made to the Constitution Bench's decision in Neeraj Dutta v State (Government of NCT of Delhi), which held that proof of demand and acceptance of illegal gratification “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 the Act.”

It further referred to Aman Bhatia v State, wherein it was held that “mere possession and recovery of tainted currency notes from a public servant, in the absence of proof of demand, is not sufficient to establish an offence under Sections 7 and 13(1)(d) of the PC Act respectively.”

The bench also referred to its recent decision in Jaswinder Singh v State of Punjab, wherein it was held that “no one saw the appellant making the demand for bribe and no one saw PW-1 handing over the bribe money to the appellant nor acceptance of the same by the appellant. The fact situation of this case, thus, is squarely covered by the judgments of this Court in Satyanarayana Murthy, Neeraj Dutta and in Aman Bhatia.”

Perusing the facts of the case in the light of aforesaid, the Supreme Court held that “proof of demand and acceptance of illegal gratification by the accused as a fact in issue could not be proved by the prosecution.” Accordingly, it set aside the Special Judge's order and the High Court's judgment confirming the appellant's conviction and sentence.

“It is declared that the charge framed against the appellant Ajit Kumar under Sections 7 and 13 of the PC Act could not be proved. Ajit Kumar is thus cleared of the said charges,” the Court held.

Appearance:

For Appellant: Mr. Shambo Nandy, AOR; Mr. Daksh Sharma, Adv.

For Respondent: Mr. Anando Mukherjee, AOR; Mr. Shwetank Singh, Adv.