Holding

The conviction under Sections 7 and 13(1)(d) of the Prevention of Corruption Act was unsustainable because the prosecution failed to prove a demand or acceptance of gratification, and the presumption under Section 20 was inapplicable to a trivial amount.

Summary

A. Subair, a lower‑division clerk in a Kerala transport office, was accused of demanding Rs.25 as a bribe for issuing a driving licence in book form. The prosecution set up a trap, recovered currency notes of Rs.20 and Rs.5, and convicted him under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988. On appeal, the Supreme Court examined whether the prosecution proved the essential ingredients of a demand and acceptance of gratification, and whether the statutory presumption under Section 20 could be drawn given the trivial amount. The Court found that the complainant was not produced as a witness, the demand was not proved, and the sole reliance on a police constable’s doubtful testimony was insufficient. Moreover, the Court held that a presumption under Section 20 cannot be drawn when the alleged gratification is trivial. Consequently, the conviction was set aside and the appellant was acquitted.

Issues considered

What evidence is required to prove a demand and acceptance of gratification under Section 7 of the Prevention of Corruption Act, 1988?
Whether the prosecution established the essential ingredients of an offence under Section 13(1)(d) read with Section 13(2).
Whether the court can invoke the presumption under Section 20 of the Act when the alleged gratification is trivial.

Legislation cited

Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2), s. 20, s. 7

Subjects

Prevention of Corruption ActSection 7Section 13(1)(d)Section 20bribepublic servanttrivial gratificationpresumption of guiltbenefit of doubtevidence

Judgment

,,
••.,...
}-

[2009] 9 S.C.R. 1058 '

--t ""'"
A A. SUBAIR
v.
STATE OF KERALA
(Criminal Appeal No. 639 of 2004) t~

MAY 26, 2009 1..
B
[V.S. SIRPURKAR AND R.M. LODHA, JJ.]
.,t· ...

Prevention of Corruption Act, 1988 - ss.7, 13(1)(d) rlw
13(2) and 20 - Public servant allegedly took gratification other
c than legal remuneration in respect of official act - Conviction
by Trial .Court - Affirmed by High Court - Propriety of - Held:
On facts, not proper -Complainant was not tendered in
evidence by prosecution - No explanation was given therefor
- In absence of examination of complainant, there was no
D substantive evidence to prove the factum of demand - ~
Besides, prosecution neither relied upon evidence of ~1

witnesses present at the time of raid nor evidence of panch
witnesses - Evidence of only remaining witness, on which the
Courts below heavily relied upon, was highly doubtful - Also,
E inference of corruption could not be fairly drawn as the alleged r
.
demand of Rs.251- was too trivial - Mere recovery ofcurrency
notes, in denominations of Rs.201- and Rs.51-, by itself, could
not be held to be proper or sufficient proof of demand and
., .
acceptance of bribe - Evidence produced by prosecution had
neither quality nor credibility and was not sufficient to bring
F
home the guilt of accused - Accused-appellant entitled to
benefit of doubt.

The complainant had applied for driving licence lf'
which was issued but not in the book form as required. t
G According to the prosecution, for delivery of driving ~. ~

licence in book form, appellant, a Lower Division Clerk
in Sub-Regional Transport Office, demanded and
received an amount of Rs.251· from the complainant. The
Courts below convicted the appellant under Sections 7
H 1058 ·t-
A. SUBAIR v. STATE OF KERALA 1059

and 13(1)(d) r/w Section 13(2) of the Prevention of the A
Corruption Act, 1988.

In appeal to this Court, the question which arose for
consideration was whether there was sufficient legal
evidence on record to convict the appellant under
8
sections 7 and 13(1)(d) r/w s.13(2) of the Prevention of
Corruption Act, 1988.
• i
Allowing the appeal, the Court

HELD: 1.1. The essential ingredients of Section 7 of c
the Prevention of Corruption Act, 1988 are:(i) that the ·
person accepting the gratification should be a public
servant and (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 0
showing or forbearing to show, in the exercise of his
official function, favour or disfavour to any person. [Para
7] (1067-C-D]

1.2. Insofar as section 13(1 )(d) of the Act is
concerned, its essential ingredients are:(i) that he should E
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 primary requisite of F
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 the absence of
proof of demand or request from the public servant for a
valuable thing or pecuniary advantage, the offence under G
Section 13(1) (d) cannot be held to be established. [Paras
8 and 10] [1067-D-E; 1068-C-D]

C.K. Damodaran Nair v. Government of India (1997) 9
sec 477, referred to H
1060 SUPREME COURT REPORTS [2009] 9 S.C.R.

~

A 2. In the present case, the complainant has not been i
tendered in evidence by the prosecution. PW-12 (10) in
his entire deposition has not stated a word as to why the
complainant was not examined or why it was not possible
to tender him in evidence. In the absence of examination
B 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 -t- --
because he was not available in India, there was
justification of non-examination of the complainant. It is
c 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 complaint in
D
evidence. 1.t has, therefore, to be held that the best
>--
evidence to prove the demand was not made available •
before the Court. [Para 12] (1060-F-H; 1061-A-B]

3.1. The prosecution neither relied upon the evidence
E 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. )r
...
The only evidence now remains is that of PW 10.
F However, the evidence of PW-10 hardly establishes the
demand allegedly made by the accused. The factum of
demand, thus remains not proved. Moreover, the
...evidence lacks in quality and reliability to record verdict
of guilt against the appellant. PW1 was initially declared
G 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, it is difficult to -,'
give much credence to his evidence. (Paras 13 and 14]
H (1069-8-F]
A. SUBAIR v. STATE OF KERALA 1061

""' 'r 3.2. Insofar as PW 2 is concerned, he did not fully A
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. B
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. [Para 15] [1069-
G-H; 1070-A]
c
3.3. As 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. The evidence of
PW-10 however suffers from serious infirmities. The
Special Judge as well as the High Court were not even
~
clear about the place where PW-1 O has positioned D
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 E
that the currency notes (MO 1 series) were handed over
by the complainant and accepted by the appellant
-.f 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 F
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 G
PW-1 O that the amount was handed over by the
complainant from outside the window and accepted by
the appellant while sitting inside the room. 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 H
1062 SUPREME COURT REPORTS [2009] 9 S.C.R.
\.-
i
A complainant entered the room, after handing over money
to the accused, to sign the acknowledgement on the
register ..As a matter of fact the presence of the
complainant inside the room renders the evidence of PW-
10 highly doubtful. With such interested evidence of PW-
B 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. (Paras 16, 17 and 18]
(1070-A-E, G-H; 1071-A-B] 1 -·

4. The prosecution has to prove the charge beyond
c 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
D the offences under consideration. [Para 19] (1071-B-C]
>--
•
5. In the present case, the High Court drew
presumption under Section 20 of the Act for charge under
Section 7. Based on that, it was held that the prosecution
E · ·has proved the offence punishable under Section 7 of the
Act. Sub-Section (3) of section 20 is a "non obstante
clause" and provides that where the gratification is trivial
and the Court is of opinion that no inference of corruption )r·

may fairly be drawn, it may decline to draw the
F presumption as referred to in sub-sections (1) and (2).
Thus, 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. The High Court was not justified in drawing
G
the presumption under Section 20 and holding that " -{

offence punishable under Section 7 of the Act was
proved. [Paras 20, 22] [1071-0; 1072-0-G]

6. Mere recovery of currency notes (Rs.20/- and Rs.5/
H -) denomination, in the facts of the present case, by itself
A. SUBAIR v. STATE OF KERALA 1063

r· cannot be held to be proper or sufficient proof of the A
demand and acceptance of bribe. When the evidence
produced by the prosecution has neither quality nor
credibility, it would be unsafe to rest convictio~ upon
such evidence. It is true that the judgments of the Courts
below are rendered concurrently but having considered B
the matter, it is found that the High Court as well as the
Special Judge committed manifest error on account of
~ t 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. c
(Para 23] (1072-G-H; 1073-A-B]
Case Law Reference:
(1997) 9 sec 477 referred to Para 9
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal D
No. 639 of 2004.

From the Judgment & Order dated 03.12.2003 of the High
Court of Kerala at Ernakulam in Criminal Appeal No. 97 of
1994. E

C.N. Sreekumar, P.R. Nayak, Dushyant Parashar ar:d V.K.
Sidharthan for the Appellants.

Kunwar Yuvraj Singh and Ramesh Babu M.R. for the
Respondents. F

The Judgment of the Court was delivered by

R.M. LODHA, J. 1. The appellant, A. Subair, in this appeal
by special leave, suffered conviction under Sections 7 and
t ) 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, G
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
H
1064 SUPREME COURT REPORTS [2009) 9 S.C.R.

.....
A and rigorous imprisonment for a period of one year and to pay 1
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.
B
2. The 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 t ~
a driving licence which was issued to him but since that was
not issued in book form, he made an application to get it
c 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
D demanded an amount of Rs. 25/- for delivery of the driving
licence in book form. Manaf was not prepared to pay the ~
....
money a!ld he made oral complaint to K. Krishna Pillai (PW-
12), Deputy Superintendent working in the Vigilance Unit,
Thiruvanathapuram. The oral complaint made by Manaf was
E 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
F 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.
201- and Rs. 5/- denomination (M.0.1 series). PW-12 also
asked the constable R.Vaman (PW-10) to accompany him.
G 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.0.1 series) was accepted
by the appellant and the signal was given, he was able to '
H
A SUBAIR v. STATE OF KERALA [R.M. LODHA, J.] 1065

_,
t collect that signal and give further signal to PW-12. As soon A
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.0.1
series) from the shirt pocket of the appellant. The appellant
also had his own currency notes (M.0.2 series) in the shirt B
pocket. P. Thankappan (PW-3), N. Thankamony (PW-4), R.
Rajan (PW-5), P. Viswanathan (PW-6), K. Jayadevan (PW-7)
. i 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
c
dipped into solution of sodium carbonate which turned pink.
..... M.0.1 series currency notes as well as one of the M.0.2 series
currency notes which was already in the pocket of the appellant
answered the phenolphthalein test positively. The left side
D
pocket of shirt also turned pink when sodium carbonate water
~
.; was applied. Sodium Carbonate bottles after conducting the
tests were sealed.

3. The appellant was arrested and later on released on
( bail. E

4. PW-12 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 F
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.
G
~ }
,,,, 5. Section 7 of the Act is as follows -

"7. Public servant taking gratification other than
legal remuneration in respect of an official act. -
f..,
Whoever, being, or expecting to be a public servant, H
1066 SUPREME COURT REPORTS [2009] 9 S.C.R.
;,,.
A accepts or obtains or agrees to accept or attempts to 1
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 or forbearing to show, in the
B 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 t .
of any State or with any local authority, corporation or ·-...
c 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."
D 6. Section 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, -
E
(a)

(b)
'y

(c)
...
..
F
(d) if, he, -

(i) by corrupt or illegal means, obtains for himself
or for any other person any valuation thing or
pecuniary advantage; or
G i. {
(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
H
A. SU BAIR v. STATE OF KERALA [R.M. LODHA, J.] 1067

·.;
! for any person any valuable thing or pecuniary A
advantage without any public interest; or
.....
(e) .........

(2) Any public servant who commits criminal
misconduct shall be punishable with imprisonment B
for a term which shall be not less than one year but
which may extent to seven years and shall also be
t i
liable to fine. n

7. The essential ingredients of Section 7 are: (i) that the c
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 forbea~ing to
show, in the exercise of his official function, favour or disfavour D
-~ to any person.
'I

8. Insofar as Section 13 ( 1)(d) of the Act is concerned, its
essen_tial 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 E
(iii) that he should have obtained a valuable thing or pecuniary
• advantage for himself or for any other person .
)'
;.
9. In the case of C.K. Damodaran Nair v. Government of
/ndia 1 , this Court had an occasion to consider the word F
"obtained" used in Section 5(1 )(d) of the Prevention of
Corruption Act, 1947 (now Section 13(1)(d) of Act, 1988), and
it was held:

"12. The position will, however, be different so far
. J as an offence under Section 5(1)(d) read with Section 5(2)
G
,,,. 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

- 1. (1997) 9 sec 477 H
1068 SUPREME COURT REPORTS [2009] 9 S.C.R.
i.-

A otherwise abusing his position as a public servant and that 1
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
B 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 t ~~
requisite for an offence under Section 5(1)(d) of the Act
c unlike an offence under Section 161 IPC, which, as noticed
above, can be, established by proof of either "acceptance"
or "obtainment"."

10. The legal position is no more res integra that primary
requisite of an offence under Section 13(1 )(d) of the Act is proof
-
D 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.
E
11. The 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 i-
...
Sections 7 and 13(1)(d) read with. 13(2)?
F 12. Pertinently, Manaf (complainant) has not been tendered
in evidence by the prosecution. PW-12 (10) 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
G substantive evidence to prove the factum of demand. The High ·t -+
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
H
A. SUBAIR v. STATE OF KERALA [R.M. LODHA, J.] 1069

) difficult to countenance the approach of the High Court. In the A
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 8
available before the Court.

.. 1 13. We 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
c
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 D
-t
... 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. E

14. Moreover, 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 F
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.

15. Insofar as PW-2 is concerned, he did not fully support
the case of prosecution. He deposed that he had an ear attack G
I' }--
two months before recording of his deposition and due to the
iHness 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
H
1070 SUPREME COURT REPORTS [2009) 9 S.C.R. ....
\--~
.
A the prosecution at all. Thus, the evidence of two independent 1
witnesses does not advance the prosecution case.

16. As 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
B
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- -r '(
10 has positioned himself. He was not within the hearing range
that he could hear the conversation that is said to have taken
c 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/
D window but admittedly the complainant was found inside the
office room when PW-12 reached. If the amount had already
t-
. 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
E 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. -.;.

F 17. The 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).
G
Specific evidence, I repeat is not available on the point." i . ..,
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
H
A SUBAIR v. STATE OF KERALA [R.M. LODHA, J.] 1071
~

"'-.,
\
register [Ext. P-23(a)]. As a matter of fact the presence of the A
,._ complainant inside the room renders the evide:.1ce of PW-10
highly doubtful.

18. In our view, with such interested evidence of PW-10,
who is a police constable and subordinate to PW-12, it would
8
be not only unsafe but dangerous to. rest conviction upon nis
testimony.
, -1
19. It 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 c
'
is established otherwise by proper proof of demand· and
..,.. acceptance of the illegal gratification, the vifal ingredient,
necessary to be established to procure a conviction for the
offences under consideration.
D
... -+ 20. The 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.

21. Section 20 of the Act, 1988 reads thus:- E

"20. Presumption where public servant accepts
! ~
> ,t gratification other than legal remuneration. '""'"
,...
(1) Where, in any trial of an offence punishable under
F
Section 7 or Section 11 csr 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,
---1 any gratification (other than legal remuneration) or any
.~
>- valuable thing from any person, it shall be presumed, unless G

- '
the contrary is proved, that he accepted or ob~ined or
agreed to accept or attempted to obtain that gratification
or that valuable thing, as the case may be, as a rmotive or
reward such as is mentioned in Section 7 or, as the case
-~
H

L
1072 SUPREME COURT REPORTS [2009] 9 S.C.R. ,,____
}-
1,.-'r

A may be, without consideration or for a consideration which 1 'I

he knows to be inadequate.
.....'\

(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
B
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 t '<i I

offered to give or attempted to give that gratification or that
valuable thing, as the case may be, as a motive or reward
c 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. .....:.

(3) Notwithstanding anything contained in sub-sections (1)
D and (2), the court may decline to draw the presumption
referred to in either of the said sub-sections, if the t "'{

gratification or thing aforesaid is, in its opinion, so trivial
that no interference of corruption may fairly be drawn."

22. Sub-Section (3) is a "non-obstante clause". It provides
E
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 'i
>...
(1) and (2). In other words, the Court is not bound to draw a ...,,
presumption under Section 20 where the alleged gratification
F 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/ 1"-
- only. In our view, the High Court was notjustified in drawing
the presumption under Section 20 and holding that offence )-
punishable under Section 7 of the Act was proved.
G ~ "'-
23. Mere recovery of currency notes (Rs. 20/- and Rs.5/-)
denomination, in the facts of the present case, by itself cannot t.--
be held to be proper or sufficient proof of the demand and
acceptance of bribe. When the evidence produced by the
-?'-
H
)-
A. SUBAIR v. STATE OF KERALA [R.M. LODHA, J.] 1073

prosecution has neither quality nor credibility, it would be unsafe A
to rest conviction upon such evidence. It is true that the
judgments of the courts below are rendered concurrently but
having considered the matter thoughlfUily, we find that the High
Court as well as the Special Judge committed manifest errors
on account of unwarranted inferences. The evidence on record B
in this case is not sufficient to bring home the guilt of the
appellant. The appellant is entitled to the benefit of doubt.
24. Consequently, the appeal is allowed. The conviction
and sentence of the appellant is set aside and the fine if paid, C
shall be refunded to the appellant. The bail bonds are cancelled.

B.B.B. Appeal allowed.