Supreme Court held In the case of P. Satyanarayana Murthy V. The Dist. Inspector of Police and ANR that the 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 there for, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, out of the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Prevention of Corruption Act 1988.
Facts of the Case
In this case, a complaint was filed by one S. Jagan Mohan Reddy (since deceased) to the Deputy Superintendent of Police, Anti Corruption Bureau alleging that the appellant who, at the relevant time was the Assistant Director, Commissionerate of Technical Education had demanded by way of illegal gratification Rs. 1000/- for renewal of the recognition of his typing institute, being run in the name and style of Rama Typewriting Institute. The complaint disclosed that on negotiation, the demand was scaled down to Rs. 500/- . Acting on the complaint, a case was registered and a trap was laid on 4.10.1996 and the tainted currency notes were recovered, in the process thereof, from the possession of the appellant. On completion of the investigation, charge-sheet was filed against the appellant, where after the charges under Sections 7 & 13(1) (d) (i) & (ii) read with Section 13(2) of the Act were framed against him to which he pleaded “not guilty”.
Contention of the Assessee
The learned senior counsel for the appellant urged 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 being conspicuously absent, the appellant ought to have been acquitted of the charge on both counts. The learned senior counsel has maintained that 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 both under Sections 7 and 13 of the Act, the appellant’s conviction as recorded by the High Court is on the face of the record unsustainable in law and on facts.
Also submitted that 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, and thus, his conviction under Section 13(1)(d)(i) & (ii)) read with Section 13(2) of the Act as sustained by the High Court, if allowed to stand, would result in travesty of justice. They reliance on the decision of this court in B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55.
Contention of the Revenue
Learned counsel for the State argued that the evidence of the prosecution witnesses, taken as a whole, demonstrably proved the demand, receipt and recovery of the illegal gratification sought for and as such no interference with the appellant’s conviction is warranted. According to the learned counsel, having regard to the office held by the appellant at the relevant point of time, he was even otherwise not authorized to receive any deposit towards the renewal of recognition of the complainant’s typing institute and that the evidence adduced by the prosecution did prove the complicity of the appellant in the offence for which he has been charged, beyond a reasonable doubt.
Held by Trial Court
The learned trial court convicted the appellant under Sections 7 and 13(1)(d)(i) & (ii) read with Section 13(2) of the Act and sentenced him to undergo R.I. for one year on each count and to pay fine of Rs. 1000/-, in default to suffer S.I. for three months for each offence. The sentences of imprisonment were, however, ordered to run concurrently.
Held by High Court
The High Court while upholding his conviction under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act, cancel his conviction under Section 7 of the Act. The sentence qua his conviction under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act was, as a corollary, sustained.
Held by Supreme Court
This Court in A. Subair vs. State of Kerala (2009)6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge there under 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.
In State of Kerala and another vs. C.P. Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-à-vis the same offences, 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.
It has been propounded that 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.
The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. Though, a very spirited endeavour has been made by the learned counsel for the State to co-relate this statement of PW1- S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt.
In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i)&(ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same.
In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had 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. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, and then the benefit of doubt must be given to the accused.
The materials on record when judged on the touch stone of the legal principle above, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1) (d)(i)&(ii) read with Section 13(2) of the Act as well.
Accordingly, appeal of the assessee allowed.
Do you think CBDT should extend Tax Audit Report and relevant ITR Due Date? Please Comment, Vote, Retweet and Like.— Tax Guru (@taxguru_in) September 18, 2018