A. Subair Vs. State of
Kerala  INSC 1111 (26 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 639 OF 2004 A.
Subair ..Appellant Versus State of Kerala ..Respondent JUDGEMENT R.M. LODHA, J.
appellant, A. Subair, in this appeal by special leave, suffered conviction
under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of
Corruption Act, 1988 (`the Act') by the court of Special Judge,
Thiruvanathapuram. The Special Judge sentenced him to undergo rigorous
imprisonment for a period of six months and to pay fine of Rs. 100/- with
default stipulation under Section 7 and rigorous imprisonment for a period of
one year and to pay fine of Rs. 250/- with default stipulation for the offence
under Section 13(1)(d) read with Section 13(2) of the Act, 1988. His conviction
and sentence has not been interfered with by the High Court of Kerala.
case of the prosecution was that the appellant was working as a Lower Division
Clerk in L-2 Section at the Sub- Regional Transport Office, Attingal. One Manaf
had applied for a driving licence which was issued to him but since that was
not issued in book form, he made an application to get it converted into book
form. Despite several visits made by Manaf, the appellant did not deliver him
the driving licence in book form and he was asked to come time and again. On
April 24, 1989, when Manaf visited the office, the appellant informed him that
the driving licence in book form was ready. The appellant demanded an amount of
Rs. 25/- for delivery of the driving licence in book form. Manaf was not
prepared to pay the money and he made oral complaint to K. Krishna Pillai
(PW-12), Deputy Superintendent working in the Vigilance Unit,
The oral complaint
made by Manaf was reduced in writing (Ext. P-20). PW-12 sent a requisition to
the Director, State Institute of Education seeking assistance of two persons to
act as independent witnesses. K.Krishnan Kutty (PW-1) and A.S. Abdul Rahim
(PW-2) were deputed accordingly. A pre-trap Mahazar (Exh.P-1) was drawn after
explaining the details of the trap and the characteristics of phenolphthalein
powder as well as its use in the trap. Phenolphthalein powder was applied on
currency notes of Rs. 20/- and Rs. 5/- denomination (M.O.1 series).
PW-12 also asked the
constable R.Vaman (PW-10) to accompany him. PW-12, PW-1, PW-2, PW-10 and Manaf
then proceeded to Sub-Regional Transport Office at Attingal, at about 12.30P.M.
on April 25, 1989 where the appellant was working.
PW-10 at the
directions of PW-12 positioned himself to such a vantage point that no sooner
the money (M.O.1 series) was accepted by the appellant and the signal was
given, he was able to collect that signal and give further signal to PW-12. As
soon as Manaf made the signal for the trap party, PW-12 rushed into the office
room where appellant was working and in the presence of PW-1 and PW-2, he
recovered money (M.O.1 series) from the shirt pocket of the appellant. The
appellant also had his own currency notes (M.O.2 series) in the shirt pocket.
P. Thankappan (PW-3), N. Thankamony (PW-4), R. Rajan (PW-5), P. Viswanathan
(PW-6), K. Jayadevan (PW-7) and A. Sahadevan (PW-8) were also present in the
office at that time. A post trap Mahazar (Ext.P-2) was prepared in the presence
of PW-1 and PW-2. A solution of sodium carbonate was prepared in a glass
tumbler. The appellant's left hand was dipped into solution of sodium carbonate
which turned pink. M.O.1 series currency notes as well as one of the M.O.2
series currency notes which was already in the pocket of the appellant answered
the phenolphthalein test positively. The left side pocket of shirt also turned
pink when sodium carbonate water was applied. Sodium Carbonate bottles after
conducting the tests were sealed.
appellant was arrested and later on released on bail.
carried on the investigation; got the site plan prepared by the Village Officer
(PW-11) and on completion of investigation sent the investigation papers
through Director of Vigilance to W.Joseph Devson (PW-9), Joint Transport
Commissioner, Thiruvanathapuram for sanction. PW-9 granted sanction to
prosecute the appellant for the offence under Section 7 and Section 13(1)(d)
read with Section 13(2) of the Act, 1988 which ultimately resulted in laying of
the charge against the appellant.
7 of the Act is as follows - "7. Public servant taking gratification other
than legal remuneration in respect of an official act. - Whoever, being, or
expecting to be a public servant, accepts or obtains or agrees to accept or
attempts to obtain from any person, for himself or for any other person, any
gratification whatever, other than legal remuneration, as a motive or reward
for doing or forbearing to do any official act or for showing 4 or forbearing
to show, in the exercise of his official functions, favour or disfavour to any
person or for rendering or attempting to render any service or disservice to
any person, with the Central Government or any State Government or Parliament
or the Legislature of any State or with any local authority, corporation or
government company referred to in clause ) of Section 2, or with any public
servant, whether named or otherwise, shall be punishable with imprisonment
which shall be not less than six months but which may extend to five years and
shall also be liable to fine."
13 (1)(d) and (2) reads - " 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
valuation 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
or (e) .........
(2) Any public
servant who commits criminal misconduct shall be punishable with imprisonment
for a term which shall be not less than one year but which may extent to seven
years and shall also be liable to fine."
essential ingredients of Section 7 are: (i) that the person accepting the
gratification should be a public servant; (ii) that he should accept the
gratification for himself and the gratification should be as a motive or reward
for doing or forbearing to do any official act or for showing or forbearing to
show, in the exercise of his official function, favour or disfavour to any
as Section 13 (1)(d) of the Act is concerned, its essential ingredients are:
(i) that he should have been a public servant; (ii) that he should have used
corrupt or illegal means or otherwise abused his position as such public
servant and (iii) that he should have obtained a valuable thing or pecuniary
advantage for himself or for any other person.
the case of C.K. Damodaran Nair v. Government of India1, this Court had an occasion
to consider the word "obtained" used in Section 5(1)(d) of the
Prevention of Corruption Act, 1947 (now Section 13(1)(d) of Act, 1988), and it
position will, however, be different so far as an offence under Section 5(1)(d)
read with Section 5(2) of the Act is concerned. For such an offence prosecution
has to prove that the accused "obtained"
the valuable thing or
pecuniary advantage by corrupt or illegal means or by otherwise abusing his
position as a public servant and that too without the aid of the statutory
presumption under Section 4(1) of the Act as it is available only in respect of
offences under Section 5(1)(a) and (b) -- and not under Section 5(1)(c), (d) or
(e) of the Act. "Obtain" means to secure or gain (something) as the
result of request or effort (Shorter Oxford Dictionary). In case of obtainment
the initiative vests in the person who receives and in that context a demand or
request from him will be a primary requisite 1 (1997) 9 SCC 477 for an offence
under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC,
which, as noticed above, can be, established by proof of either
"acceptance" or "obtainment"."
legal position is no more res integra that primary requisite of an offence
under Section 13(1)(d) of the Act is proof of a demand or request of a valuable
thing or pecuniary advantage from the public servant. In other words, in the
absence of proof of demand or request from the public servant for a valuable
thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held
to be established.
core question that must be answered by us in this appeal is: whether there is
sufficient legal evidence on record to bring home the guilt of the appellant
for the offence under Sections 7 and 13(1)(d) read with 13(2)?
Manaf (complainant) has not been tendered in evidence by the prosecution. PW-12
(IO) in his entire deposition has not stated a word as to why Manaf was not
examined or why it was not possible to tender him in evidence. In the absence
of examination of the complainant, there is no substantive evidence to prove
the factum of demand. The High Court held that since the Special Judge made
attempts to secure the presence of the complainant and those attempts failed because
he was not available in India, there was justification of non-examination of
the complainant. We find it difficult to countenance the approach of the High
Court. In the absence of semblance of explanation by the investigating officer
for the non- examination of the complainant, it was not open to the courts
below to find out their own reason for not tendering the complainant in
evidence. It has, therefore, to be held that the best evidence to prove the
demand was not made available before the Court.
shall now examine whether the evidence of other witnesses sufficiently proves
the demand? Suffice it to say that prosecution has neither relied upon the
evidence of PW-3 to PW-8, who were present in the office at the time of raid
nor the evidence of panch witnesses (PW-1 and PW-2) to prove the demand. The
investigating officer (PW-12) also does not state anything about the demand.
The only evidence now remains is that of PW-10. He stated, "I felt that he
(complainant) was talking something to the person who was sitting inside near
the window (the accused). Immediately complainant took out the money from the
left pocket of his shirt and offered it through the window." We are
afraid, the evidence of PW-10 hardly establishes the demand allegedly made by
the accused. The factum of demand, thus, remains not proved.
we find that the evidence lacks in quality and reliability to record verdict of
guilt against the appellant. PW-1 was initially declared hostile and public
prosecutor sought permission to cross examine him. In cross examination
conducted by public prosecutor, he partially supported the prosecution case.
Having considered his evidence minutely, we find it difficult to give much
credence to his evidence.
as PW-2 is concerned, he did not fully support the case of prosecution. He
deposed that he had an ear attack two months before recording of his deposition
and due to the illness and the treatment, he could not recollect the details of
the incident. He also stated that he was suffering from depressive psychosis.
His evidence does not help the case of the prosecution at all. Thus, the
evidence of two independent witnesses does not advance the prosecution case.
a matter of fact, the Special Judge as well as the High Court heavily relied
upon the deposition of PW-10 in support of the prosecution case. We were taken
through the evidence of PW-10 and, in our considered view, his evidence suffers
from serious infirmities. The Special Judge as well as the High court were not
even clear about the place where PW-10 has positioned himself. He was not
within the hearing range that he could hear the conversation that is said to
have taken place between the complainant and the appellant. The defence of the
appellant was that the complainant attempted to thrust the currency notes into
his pocket. PW-10 stated that the currency notes (M.O. 1 series) were handed
over by the complainant and accepted by the appellant through the
counter/window but admittedly the complainant was found inside the office room when
PW-12 reached. If the amount had already been handed over by the complainant to
the appellant through the counter/window, where was an occasion for the
complainant to be inside the office room where the appellant was said to be
sitting. This casts serious doubt about the prosecution case and, more
particularly, the evidence of PW-10 that the amount was handed over by the
complainant from outside the window and accepted by the appellant while sitting
inside the room.
High Court noticed: "But why was CW-1 (complainant) found inside the
office room? Though such a specific version has not at all been given by the
prosecution, probabilities unmistakably suggest that the presence of
complainant inside the room obviously must have been necessarily to sign the
acknowledgment on Ext. P-23(a). Specific evidence, I repeat is not available on
the point." Strangely, the High Court made out a new case in favour of
prosecution although it was not stated by PW-10 nor anyone that the complainant
entered the room, after handing over money to the accused, to sign the
acknowledgement on the register [Ext. P-23(a)]. As a matter of fact the
presence of the complainant inside the room renders the evidence of PW-10
our view, with such interested evidence of PW-10, who is a police constable and
subordinate to PW-12, it would be not only unsafe but dangerous to rest
conviction upon his testimony.
needs no emphasis that the prosecution has to prove the charge beyond
reasonable doubt like any other criminal offence and the accused should be
considered innocent till it is established otherwise by proper proof of demand
and acceptance of the illegal gratification, the vital ingredient, necessary to
be established to procure a conviction for the offences under consideration.
High Court drew presumption under Section 20 of the Act for charge under
Section 7. Based on that, it was held that the prosecution has proved the
offence punishable under Section 7 of the Act.
20 of the Act, 1988 reads thus:- "20. Presumption where public servant
accepts gratification other than legal remuneration. - (1) Where, in any trial
of an offence punishable under Section 7 or Section 11 or clause (a) or clause
(b) of sub-section (1) of Section 13 it is proved that an accused person has
accepted or obtained or has agreed to accept or attempted to obtain for
himself, or for any other person, any gratification (other than legal
remuneration) or any valuable thing from any person, it shall be presumed,
unless the contrary is proved, that he accepted or obtained or agreed to accept
or attempted to obtain that gratification or that valuable thing, as the case
may be, as a motive or reward such as is mentioned in Section 7 or, as the case
may be, without consideration or for a consideration which he knows to be
(2) Where in any
trial of an offence punishable under Section 12 or under clause (b) of Section
14, it is proved that any gratification (other than legal remuneration ) or any
valuable thing has been given or offered to be given or attempted to be given
by an accused person, it shall be presumed, unless the contrary is proved, that
he gave or offered to give or attempted to give that gratification or that
valuable thing, as the case may be, as a motive or reward such as is mentioned
in Section 7, or as the case may be, without consideration or for a
consideration which he knows to be inadequate.
anything contained in sub-sections (1) and (2), the court may decline to draw
the presumption referred to in either of the said sub-sections, if the
gratification or thing aforesaid is, in its opinion, so trivial that no
interference of corruption may fairly be drawn."
(3) is a "non-obstante clause". It provides that where the
gratification is trivial and the Court is of opinion that no inference of
corruption may fairly be drawn, it may decline to draw the presumption as
referred to in sub-Sections (1) and (2).
In other words, the
Court is not bound to draw a presumption under Section 20 where the alleged
gratification is too trivial. In a case such as this an inference of corruption
may not be fairly drawn as the alleged demand was of Rs. 25/- only. In our
view, the High Court was not justified in drawing the presumption under Section
20 and holding that offence punishable under Section 7 of the Act was proved.
recovery of currency notes (Rs. 20/- and Rs.5/-) denomination, in the facts of
the present case, by itself cannot be held to be proper or sufficient proof of
the demand and acceptance of bribe. When the evidence produced by the
prosecution has neither quality nor credibility, it would be unsafe to rest
conviction upon such evidence. It is true that the judgments of the courts
below are rendered concurrently but having considered the matter thoughtfully,
we find that the High Court as well as the Special Judge committed manifest
errors on account of unwarranted inferences. The evidence on record in this
case is not sufficient to bring home the guilt of the appellant. The appellant
is entitled to the benefit of doubt.
the appeal is allowed. The conviction and sentence of the appellant is set
aside and the fine if paid, shall be refunded to the appellant. The bail bonds