The prosecution must prove demand and acceptance of illegal gratification to establish guilt under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. In the absence of direct evidence, a presumption of fact may be raised by the court based on foundational facts, and a legal presumption arises under Section 20 of the Act upon proof of demand and acceptance.

IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

HON’BLE SRI JUSTICE SANJAYA KUMAR MISHRA

HON’BLE SRI JUSTICE ALOK KUMAR VERMA

11^th JANUARY, 2023

SPECIAL LEAVE TO APPEAL NO.77 OF 2022

WITH

GOVERNMENT APPEAL NO.23 OF 2022

Between:

State of Uttarakhand

......Appellant

And

Manju Kannojia

…….Respondent

Counsel for the State/

Appellant

: Mr. J.S. Virk,

Deputy Advocate General

assisted by Mr. P.S. Uniyal,

Brief Holder for the State.

Counsel for the Respondent

: Vipul Sharma, learned counsel

for the respondent.

Upon hearing the learned counsel for the parties, this

Court made the following judgment:

(Per: Sri SANJAYA KUMAR MISHRA, J.)

By filing this application under Section 378(3) of the

Code of Criminal Procedure, 1973 (hereinafter referred to as,

“the Code” for brevity), the State of Uttarakhand has prayed for

Special Leave to Appeal against the judgement and order of

acquittal recorded by the Special Court Vigilance/ Prevention of

2

Corruption Act, Dehradun in Special Sessions Trial No. 06 of

2014, “State of Uttarakhand vs. Smt. Manju Kannojia” under

Section 7 and Section 13(1)(d) read with Section 13 (2) of the

Prevention of Corruption Act, 1988.

2.

In this connection, the learned counsel for the State

would rely upon the judgment of the Constitution Bench of

Hon’ble Supreme Court in the case of Neeraj Dutta vs. State

(Govt. of N.C.T. of Delhi), 2022 SCC Online SC 1724,

wherein, the Constitution Bench of Hon’ble Supreme Court

answered the reference made to by three Judge Bench of

Hon’ble Supreme Court in order to resolve a conflict of the

judgment rendered by three Judge Bench of the Hon’ble

Supreme Court in cases of B. Jayaraj vs. State of Andhra

Pradesh, (2014) 13 SCC 55 and P. Satyanarayana

Murthy v. District Inspector of Police, State of Andhra

Pradesh and Another, (2015) 10 SCC 152, as the same is

considered to be in conflict with earlier three Judge Bench’s

judgment of this Court in the case of M. Narsinga

Rao v. State of A.P., (2001) 1 SCC 691, regarding the

nature and quality of proof necessary to sustain a conviction for

the offences under Section 7 and Section 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act, 1988 when

the primary evidence of the complainant is unavailable.

3

3.

In this case, also the primary evidence of the

complainant is not available, in the sense, that she has not

supported the case of prosecution and has been declared hostile

by the prosecution.

4.

While answering the reference made, the Hon’ble

Supreme Court has held as follows:-

“74.

What

emerges

from

the

aforesaid

discussion

is

summarised as under:

(a) Proof of demand and acceptance of illegal gratification by a

public servant 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.

(b) In order to bring home the guilt of the accused, the

prosecution has to first prove the demand of illegal gratification

and the subsequent acceptance as a matter of fact. This fact in

issue can be proved either by direct evidence which can be in

the nature of oral evidence or documentary evidence.

(c) Further, the fact in issue, namely, the proof of demand and

acceptance of illegal gratification can also be proved by

circumstantial evidence in the absence of direct oral and

documentary evidence.

(d) In order to prove the fact in issue, namely, the demand

and acceptance of illegal gratification by the public servant, the

following aspects have to be borne in mind: “

(i) if there is an offer to pay by the bribe giver without there

being any demand from the public servant and the latter

simply accepts the offer and receives the illegal grat