IMPORTANT POINT
Illegal gratification – Direct proof of demand may not be available in all instances.

JUDGMENT

R. Banumathi, J.

This appeal arises out of the judgment dated 02.04.2009 passed by the High Court of Delhi in Criminal Appeal Nos. 15 and 4 of 2007 in and by which the High Court affirmed the conviction of the appellant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and the sentence of imprisonment imposed upon her.

2. Complainant-Ravijit Singh Sethi received a phone call from the appellant who was working as LDC in Delhi Vidyut Board on 17.04.2000 at 07.30 am asking the complainant to meet her at her house in connection with installation of electricity meter at his shop. When complainant met the appellant, she demanded bribe of Rs. 15,000/- for installation of meter which was subsequently reduced to Rs. 10,000/- after negotiation. The appellant agreed to receive the said amount between 03.00 PM-04.00 PM on the same day at the shop of the complainant. As the complainant was not willing to pay the bribe, he made a complaint (Ex. PW-5/A) before ACB, based on which, FIR was registered. Inspector O.D. Yadav (PW-6) organised the pre-raid proceedings. S.K. Awasthi (PW-5) accompanied the complainant and the complainant paid Rs. 10,000/- to the appellant and she received the amount from the complainant and the same was transferred to the second accused-Yogesh Kumar/Driver. Upon receiving signal from PW-5/shadow witness, PW-6-Inspector along with raiding party arrived and recovered Rs. 10,000/- from the second accused-Yogesh Kumar. Hands of both the appellant and accused No. 2-Yogesh Kumar turned pink, when they were put in the sodium bicarbonate solution. Upon completion of investigation, charge sheet was filed against the appellant and accused Yogesh Kumar under Sections 7 and 13(2) of Prevention of Corruption Act, 1988 (For short "The P.C. Act").

3. Since the complainant passed away before the trial, he could not be examined. PW-5-shadow witness was examined who supported the case of the prosecution. Based upon the evidence of PW-5 and recovery of money from the appellant, the trial court held that the demand and acceptance of illegal gratification has been established by the prosecution and convicted the appellant-accused No. 1 under Section 7 and Section 13(1)(d) read with Section 13(2) of the P.C. Act and sentenced her to undergo imprisonment for two years and three years respectively and also imposed fine. The trial court also convicted accused No. 2 under Section 12 of the P.C. Act for abetment of the offence. In appeal, the High Court affirmed the conviction of the appellant and the sentence of imprisonment imposed upon her. The High Court acquitted the second accused of the charges levelled against him holding that there is no evidence to prove conspiracy or abetment. Being aggrieved, the appellant has preferred this appeal.

4. We have heard Mr. S. Guru Krishna Kumar, learned senior counsel appearing for the appellant and Ms. Kiran Suri, learned senior counsel appearing for the respondent-State.

5. Contention of the appellant is that mere proof of receipt of money by the accused in the absence of proof of demand of illegal gratification is not sufficient to prove the guilt of the accused. It was contended that when the complainant passed away, primary evidence of demand is not forthcoming and when the prosecution could not establish the demand by such primary evidence, the conviction of the appellant cannot be sustained.

6. In support of his contention, the learned senior counsel for the appellant placed reliance upon P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another (2015) 10 SCC 152. In the said case, the complainant died before the trial and thus could not be examined by the prosecution. Panch witness was examined as PW-1, which was the sheet anchor of the prosecution case. Observing that on the demise of the complainant, primary evidence of the demand is not forthcoming and inferential deduction of demand is impermissible