SUPREME COURT ACQUITTED THE APPELLANT-PUBLIC SERVANT ON THE GROUND THAT THE MONEY ACCEPTED WAS NOT IN THE NATURE OF ILLEGAL GRATIFICATION
A Two Judge Bench of the Supreme Court comprising of Justice Abhay S Oka and Justice Rajesh Bindal passed a Judgment dated 17.03.2023 in the case of Neeraj Dutta v State (Govt. of N.C.T. of Delhi), Criminal Appeal No. 1669 of 2009 and observed that the Prosecution failed to establish that the money accepted by the Appellant-Public Servant was in the nature of an illegal gratification under the Prevention of Corruption Act,1988.
- In the present case, one, Late Mr. Ravijit Singh (Complainant) was engaged in a business of sale and purchase of cars by the name of M/s Sethi Motors in New Delhi.
- On 06.05.1995, the Complainant had applied for installation of an electric meter in his shop, but within a few months of its installation, the meter was removed.
- For a new and quick installation of electric meter, the Complainant approached one, Mrs. Neeraj Dutta (Appellant), a Lower Division Clear (LDC) in a Digital Video Broadcasting (DVB) Office in the year 2000.
- The Complainant filed a Complaint dated 17.04.2000 before the Inspector (PW6) of the Anti-Corruption Branch (ACB), whereby he stated that the Appellant demanded Rs 15,000/- cash for installation of the electric meter but finally agreed to accept Rs 10,000/- as bribe instead. He also stated that the Appellant informed him that she would come to his shop to collect the same around 3:00pm on the next day. Aggrieved, the Complainant filed the aforementioned Complaint before PW6 and handed over the intended bribe money of Rs. 10,000 in cash to PW6.
- After recording the pre-raid proceedings, PW6 treated the alleged bribe money with phenolphthalein powder and explained the raid procedure to the Complainant in the presence of S.K. Awasthi (PW5), a shadow witness.
- The PW5, PW6 and an Investigation Officer (PW7) conducted a raid and caught the Appellant and Mr Yogesh Kumar (Co-Accused) in the Complainant’s shop while taking the treated cash.
- The PW7 registered an FIR No. 21/2000 against the Appellant and the Co-Accused before Ld. Special Judge, Delhi under the Prevention of Corruption Act, 1988 (Act).
- But before the trial even commenced, the Complainant passed away.
- The Ld. Special Judge vide Order dated 14.12.2006 (i) convicted the Appellant under Section 7 of the Act (Accepting Gratification other than legal remuneration by Public Servant) and Section 13(1) (d) clause (i), (ii) read with Section 13(2) of the Act (Criminal Misconduct by Public Servant) and (ii) further, convicted the Co-Accused under Section 12 of the Act (Punishment for Abetment of Offences under Section 7).
- Aggrieved by the Order of Conviction dated 14.12.2006, the Appellant and the Co-Accused filed Criminal Appeal No. 4 of 2007 and Criminal Appeal No. 15 of 2007 before the High Court of Delhi respectively.
- The High Court of Delhi vide Order dated 02.04.2009, dismissed the Appellant’s Appeal and upheld her conviction and allowed the Appeal filed by the Co-Accused thereby acquitting him, as the High Court found that the Co-Accused was merely an attendant accompanying the Appellant to the Complainant’s shop, without having prior information of the Appellant’s intentions.
Supreme Court Analysis:
Aggrieved by the High Court Order dated 02.04.2009, the Appellant filed Criminal Appeal No. 1669 of 2009 before the Supreme Court. The Apex Court passed a Judgment dated 17.03.2023 and made the following observations:
i) That the present case fell under the Prevention of Corruption Act, 1988, prior to its Amendment in 2018.
ii) That in the absence of any direct evidence either oral or documentary, the prosecution can rely upon circumstantial evidence to prove the act of demand of gratification by a public servant.
iii) That the Hon’ble Court distinguished between Section 7 of the said Act (Accepting Gratification other than legal remuneration by Public Servant) and Section 13 of the Act (Criminal Misconduct by Public Servant) and clarified as follows:
a) Section 7 focuses on an ‘Offer’ to pay bribe by the bribe giver without any demand from the public servant. In addition, if the latter simply accepts the Offer and receives the illegal gratification, it is a case of Acceptance.
b) Section 13 focuses on the public servant making a ‘Demand’ and the bribe giver accepting to pay the same. Upon demanding, if the public servant receives the bribe, it is a case of ‘Obtainment’ and is punishable under Section 13 of the Act.
c) Therefore, the prosecution must prove beyond all reasonable doubt, the act of ‘Demand’ and ‘Acceptance’ to show the guilt on the part of the public servant. In other words, mere acceptance or receipt of an illegal gratification without any demand would not make it an offence under Section 7 or Section 13 of the Act.
iv) Once the said act of ‘Demand’ and ‘Acceptance’ of bribe is established by the prosecution, then it shall be presumed, that the public servant has accepted or obtained or agreed to accept or attempted to obtain such illegal gratification.
v) That in this case, the Complainant had passed away even before the trial had commenced. Hence, the Supreme Court held that in cases where the complainant turns hostile / is dead / is unavailable to lead his evidence during the trial, the Court can rely on circumstantial evidence rather than abating the trial or ordering for an acquittal of the accused public servant.
vi) Thus, applying the aforesaid principles to the present case, the Apex Court held that as the Complainant was not alive to lead the evidence during trial proceedings, hence, the entire case relied on the circumstantial evidence and the evidence submitted by the party who conducted the raid, i.e. mainly PW5.
vii) That as per the Appellant, she was present at the Complainant’s shop to collect dues from consumers and that the amount collected from other consumers of around Rs. 71,000/- was lying in her car, which stood as an evidence to support her statement.
viii) That PW5 admitted that he did not know the purpose for which the said cash transaction took place between the Complainant.
ix) That due to the absence of any other evidence, the Supreme Court held that not every demand made for payment of money is a demand for gratification. It has to be something more than just mere demand for money to constitute an offence of illegal gratification under the Act.
Thus, based on the aforesaid observations, the Apex Court passed a Judgment dated 17.03.2023 and held that the Prosecution failed to establish the necessary ingredients under Sections 7 and 13 of the Act. Therefore, the Supreme Court set aside the High Court Judgment dated 02.04.2009 and the Order of Conviction dated 14.12.2006 of the Ld. Special Judge and thereby, allowed the Appeal filed by the Appellant-Public Servant.
The Indian Lawyer