IMPORTANT POINT
Mere acceptance of money by a public servant, without there being any other evidence that it was demanded would not be sufficient for convicting the accused under Section 13(1)(d) of the Prevention of Corruption Act, 1988 though he was rightly convicted under Section 7 of the Act for mere acceptance of money.

Headnote:Prevention of Corruption Act, 1988-Sections 7, 11 and 13(1)(d) and 20-Criminal misconduct by a public servant-Difference between Sections 7, 11 and 13(1)(a), (b) and 13(1)(d)-Difference between words "accepts" and "obtains"-Later requires demand before acceptance-Mere acceptance of money is actionable under Sections 7 or 11 due to presumption under Section 20-Case law and statutory provisions referred-No evidence on record that appellant accused demanded money before acceptance-Trial Court and High Court misread the evidence of Panch witness (PW 2) on demand-Result-Conviction under Section 7 is upheld at the time of admission of appeal (Para 3)-But conviction under Section 13(1)(d)(i) set aside in final hearing-Appeal partly allowed (Constitution of India-Article 136-I.P.C. 1860-Section 161-Prevention of Corruption Act) Section 5(1)(d).
       Held : In our view, mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d)(i). (Para 5)
       For convicting the person under Section 13(1)(d), there must be evidence on record that accused obtained for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest. (Para 6)
       [After referring to case law and statutory provisions, on Evidence Act]
       Held : The High Court misread the evidence of PW 2 and held that there was demand by the accused and the amount was paid to him by the complainant. It was unreasonable to hold that accused demanded money from the complainant. Complainant denied the said story and PW 2 had not stated so. (Para 10)
       Held finally : In this view of the matter, this appeal is partly allowed. Impugned judgment and order passed by the High Court confirming the order passed by the Special Judge, City Civil Court, Ahmedabad convicting the appellant for the offence punishable under Section 13(1)(d)(i) is set aside and the appellant is acquitted for the same. (Para 11)

JUDGMENT

Shah, J.-Leave granted.

2. Appellant was convicted by the Special Judge, City Civil Court, Ahmedabad by judgment and order dated 10.9.1997 for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act") and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500, in default of payment of which to further undergo rigorous imprisonment for 15 days. He was also convicted for the offence punishable under Sections 13(1)(d) and 13(2) of the Act and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to further undergo rigorous imprisonment for 15 days. Against that judgment and order, appellant preferred Criminal Appeal No. 881/97 before the High Court of Gujarat at Ahmedabad. The High Court dismissed the said appeal by passing the impugned judgment. That order is challenged by filing this appeal.

3. At the time of admission hearing, this Court passed the following order :-

"Considering the contentions raised by learned counsel for the petitioner and the evidence on record the impugned order passed by Special Judge and confirmed by the High Court with regard to the conviction of the petitioner under Section 7 of the Prevention of Corruption Act cannot be assailed in any manner. Hence, with regard to that part of the judgment this petition is dismissed. However, with regard to the conviction of the petitioner under Section 13(1)(d) issue notice returnable on 9th January, 2002."

Thereafter, the matter was directed to be placed on a non-miscellaneous day for final hearing.

4. The learned senior counsel Mr. Anand appearing on behalf of appellant submitted that the judgment and order passed by the High Court confirming the conviction of the appellant under Section 13(1)(d)(i) of the Act is on the face of it illegal and erroneous. He submitted that for convicting the appellant for the offence under Section 13(1)(d), the prosecution must establish that by corrupt and illegal means accused has obtained for himself or for any other person any valuable thing or pecuniary advantage. He submitted that in the present case, there is no evidence on record that appellant obtained any amount by corrupt or illegal means.

5. In our view, mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d)(i), Section 13(1)(d) is as under :-

"13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,

(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 advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest."

6. In Sections 7 and 13(1)(a) and (b) of the Act, the Legislature has specifically used the words accepts or obtains . As against this, there is departure in the language used in clause (1)(d) of Section 13 and it has omitted the word accepts and has emphasized the word obtains . Further, the ingredient of sub-clause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage; under clause (ii), he obtains such thing by abusing his position as public servant; and sub-clause (iii) contemplates that while holding office as the public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under Section 13(1)(d), there must be evidence on record that accused obtained for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing

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2002 Supreme(SC) 542

Cases Referred (2)