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A Constitution Bench judgment of this Court in are cent decision dated 15th December, 2022 in Criminal AppealNo.1669 of 2009 (Neeraj Dutta vs. State (Govt. of NCT of Delhi )
holds that when the
complainant does not support the prosecution, the demand made by the accused can be otherwise proved by the prosecution even on the basis of circumstantial evidence. While saying so, the Constitution Bench has reiterated that the offer by the bribe giver and the demand by the public servant have to be proved by the prosecution as a fact in issue. The Constitution Bench reiterated that mere acceptance or receipt of illegal gratification without anything more would not make it an offence under Section 7 or Section 13(d) of the PC Act. {Para 5}
NON-REPORTABLE
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1779 OF 2010
SHANKARLAL SHARMA Vs. STATE OF
MADHYA PRADESH
Author: Abhay S.Oka, J.
Dated: February 23, 2023.
1. Though the appeal was repeatedly called
out, none appeared for the
appellant. With the assistance of the learned
counsel appearing for the respondent-State of Madhya
Pradesh , we have gone through the record.
2. The appellant is the accused who
was prosecuted forthe offences punishable under
Sections 7 and 13(1) (d) read with Section 13(2) of the Prevention of
Corruption Act, 1988(For short, the PC Act). The Special Court acquitted the appellant. By the impugned judgment, the
High Court hasreversed the finding of the Special Court and has convertedthe
order of acquittal into conviction.
3. The case of the prosecution is that
one Ramsevak (thecomplainant) had made an application to the Estate officer of
M.P. Housing Board for grant of a true copy of a lease agreement. He needed a
copy of the lease agreement as he was
building a house on the property subject matter of the lease. At the relevant time, the appellant was serving asan Assistant Grade-III in the office of the Estate
Officer. The case of the prosecution is that on 7 th October, 2003, the appellant- accused demanded illegal gratification of Rs.1,000/- (Rupees one thousand) from the
complainant for supply of a copy of the lease. The complainant lodged a complaint
on 15 th October,
2003 to the Superintendent ofPolice. Acting on the basis of the complaint, a
trap was laid on 15 th October, 2003 at 2.30 p.m. According to the prosecution case, the trap was successful and the
currency notes were recovered from
the custody of the appellant-accused.
4. The learned Special Judge held that
both the demand and acceptance were not proved. We find that the complainant did not support the
prosecution and he was declared hostile. In paragraph 24 of the impugned
judgment, the High Court has noted that no person accompanied the complainant as the surveillance or shadow
witness at the time of trap. The submission of the learned counsel appearing for
the respondent is that though the complainant
may not have supported the prosecution, the complaint was proved through
a prosecution witness. Secondly, he submitted
that the trap was established. He would, therefore, submit that the presumption
under Section 20 of the PC Act will squarely apply.
5. A Constitution Bench
judgment of this Court in are cent decision dated 15th December, 2022 in Criminal AppealNo.1669 of 2009 (Neeraj Dutta vs. State (Govt. of NCT of Delhi )
holds that when the
complainant does not support the prosecution, the demand
made by the accused can be otherwise proved by the prosecution even on the basis of circumstantial evidence.
While saying so, the
Constitution Bench has reiterated
that the offer by the bribe giver and the demand by the public servant
have to be proved by the prosecution as a fact in issue. The
Constitution Bench reiterated that
mere acceptance or receipt of illegal gratification without anything more would
not make it an offence under Section 7 or Section 13(d) of the PC Act.
The Constitution Bench also held that only when a
proper demand is made by a public servant and is accepted by the bribe giver and in turn, the amount
tendered by the bribegiver is
received by the public servant, it would be an offence under Section 13(1) (d)
and in particular Clauses (i) and (ii) thereof. The Constitution Bench
reiterated the well settled law that presumption under Section 20 does not apply to Clauses (i) and (ii) of Section
13(1)(d) of the PCAct.
6. Turning to the facts of the case,
as noted earlier, the complainant did
not support the prosecution and therefore, through the complainant, the prosecution could not
establish the demand allegedly
made by the appellant. Moreover, even
the complaint could not be proved as the complainant did not support the
prosecution. Through a witness who
was present at the time of giving complaint, the prosecution may have proved the
signature of the complainant on the complaint. But obviously, the contents
thereof cannot be said to have been
proved. As noted by the High Court in paragraph
24, no witness accompanied the complainant at the time of trap. The High Court
has not found that there
was any circumstantial evidence
which could establish the demand of illegal gratification by the
appellant.
7. Therefore, we are of the considered opinion that in the present case, the factum of demand was not
established by the prosecution. Hence, the judgment of the High Court cannot be
sustained. Accordingly, the appeal is allowed. The impugned judgment of the High Court dated
6th
March, 2010 is hereby set aside and order of
acquittal passed by theSpecial Court is hereby restored.
8.
The bail bonds of
the appellant stand cancelled.
.…………………… J.
.…………………… J.
February 23, 2023.
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