2009 Supreme(SC) 1137

2009(4) Supreme 490
SUPREME COURT OF INDIA
V.S. Sirpurkar and R.M. Lodha, JJ.
A. Subair — Appellant
versus
State of Kerala — Respondent
Criminal Appeal No. 639 of 2004
Decided on : 26-05-2009

IMPORTANT POINTS
1. When the evidence produced by prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence.
2. In absence of proof of demand or request from public servant for a valuable thing or pecuniary advantage, offence under Section 13(1)(d) cannot be held to be established.
3. Mere recovery of currency, by itself can not be held to be proper or sufficient proof of demand and acceptance of bribe.

Headnote:Prevention of Corruption Act, 1988 – Sections 7 and 13(1)(d) read with Section 13(2) – Prosecution of appellant a Lower Division Clerk in L-2 Section at the Sub – Regional Transport Office, Attingal for demanding and accepting illegal gratification of Rs 25/- from complainant for delivery of driving licence in book form – Conviction by Trial Court – Appeal – Dismissed by High Court – Appeal – Primary requisite of an offence under Section 13(1)(d) of Act is proof of a demand or request of a valuable thing or pecuniary advantage from public servant – Pertinently, complainant was not tendered in evidence by prosecution – PW-12 (IO) in his entire deposition not stated even a word as to why complainant was not examined or why it was not possible to tender him in evidence – In absence of examination of complainant, there was no substantive evidence to prove factum of demand – Prosecution neither relied upon evidence of PW-3 to PW-8, who were present in office at time of raid nor evidence of panch witnesses (PW-1 and PW-2) to prove demand – Investigating officer (PW-12) also did not state anything about demand – Even evidence of PW-10 hardly established demand allegedly made by accused – The factum of demand, thus, was not proved – Evidence lacked in quality and reliability to record verdict of guilt against appellant – Even evidence of two independent witnesses not advanced prosecution case – Evidence of PW2 suffered from serious infirmities – High Court was held not justified in drawing presumption under Section 20 and holding that offence punishable under Section 7 of Act was proved – Mere recovery of currency in the facts of the present case, by itself could not be held to be proper or sufficient proof of demand and acceptance of bribe – The evidence on record not sufficient to bring home the guilt of appellant – Appellant held entitled to benefit of doubt – Appeal allowed. (Paras 12 to 24)

       Facts of the Case :

        1. Appellant a Lower Division Clerk in L-2 Section at the Sub-Regional Transport Office, Attingal was convicted herein in the instant case for demanding and accepting illegal gratification of Rs 25/- from complainant for delivery of driving licence in book form. Appeal thereagainst was dismissed by High Court.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Pertinently, complainant was not tendered in evidence by prosecution.PW-12 (IO) in his entire deposition not stated even a word as to why complainant was not examined or why it was not possible to tender him in evidence. In absence of examination of complainant, there was no substantive evidence to prove factum of demand. Prosecution neither relied upon evidence of PW-3 to PW-8, who were present in office at time of raid nor evidence of panch witnesses (PW-1 and PW-2) to prove demand. Investigating officer (PW-12) also did not state anything about demand. Even evidence of PW-10 hardly established demand allegedly made by accused. The factum of demand, thus, was not proved. Evidence lacked in quality and reliability to record verdict of guilt against appellant. Even evidence of two independent witnesses not advanced prosecution case. Evidence of PW2 suffered from serious infirmities. High Court was held not justified in drawing presumption under Section 20 and holding that offence punishable under Section 7 of Act was proved. Mere recovery of currency in the facts of the present case, by itself could not be held to be proper or sufficient proof of demand and acceptance of bribe. The evidence on record held not sufficient to bring home the guilt of appellant. Appellant was held entitled to benefit of doubt. Appeal was allowed.

       Result : Appeal allowed.