N. SUNKANNAversusSTATE OF ANDHRA PRADESH

                      [201_5] 12 S.C.R. 882


A                        N. SUNKANNA
                                v.
                 STATE OF ANDHRA PRADESH
                (Criminal Appeal No.1355 of 2015)
B
                      OCTOBER 14, 2015
             [M.Y. EQBALAND C. NAGAPPAN, JJ.]

        Prevention of Corruption Act, 1988- ss. 7, 13(1)(d) rlw
c 13(2) and 20- Allegation of demand and acceptance of bribe
  - Trap arranged- Recovery of tainted notes from the accused
  - During trial complainant turned hostile- The courts below
  relying on the Panch Witnesses and drawing presumption ul
  s. 20 convicted the accused- On appeal, held: There was no
0 evidence to prove that the accused made any demand-

  Mere recovery ofthe tainted currency notes from the accused
  without proof of demand will not bring home the offence u/
  s. 7 -In absence of proof of demand offence uls.13(1)(d) is
  also not established- Unless there is proof of demand, proof
E of acceptance will not follow - Presumption uls. 20 can be
  drawn only on proof of acceptance- Therefore, courts below
  wrongly drew presumption u/s. 20.

        Allowing the appeal, the Court
F
       HELD: 1. The complainant himself had disowned his
  complaint and has turned hostile and there is no other
  evidence to prove that the accused had made any
  demand. The only other material available is the recovery
G of the tainted currency notes from the possession of the
  accused. The possession is also admitted by the
  accused. It is settled law that mere poss·ession and
  recovery of the currency notes from the accused without
  proof of demand will not bring home the offence under
H
                               882
     N. SUNKANNA v. STATE OF ANDHRA PRADESH                   883


Section 7, since demand-of illegal gratification is sine- A
qua-non to constitute the said offence. The above also
will be conclusive insofar as the offence u/s. 13(1)(d) of
Prevention of Corruption Act is concerned as in the
absence of any proof of demand for illegal gratification
the use of corrupt or illegal means or abuse of position 8
as a public servant to obtain any valuable thing or
pecuniary advantage cannot be held to be established.
[Para 6] [886.-F-H; 887-A-B]

     2. It is only on proof of acceptance of illegal C
gratification that presumption can be drawn under
Section 20 of the Act that such gratification was received
for doing or forbearing to do any official act. Unless there
is proof of demand of illegal gratification, proof of D
acceptance will not follow. In the present case, the
primary facts on the basis of which the legal presumption
u/s. 20 can be drawn, are wholly absent. The conviction
of the appellant u/s. 7 and u/s. 13(1 )(d) r/w. s.13(2) of the
Act and the sentences imp·osed are set aside and .he is E·
acquitted of the charges. [Paras 6 and 7] [887 -8-F]

     B. Jayaraj vs. State of Andhra Pradesh 2014 (4)
     SCR 554: (2014) 13 SCC 55; P Satyanarayna
     Murthy vs. The District Inspector of Police and
                                                              F
     another 2015 (9) SCALE 724- referred to.

                    Case Law Reference
   2014 (4) ~CR 554        referred to.        Para 6
   2015 (9) SCALE 724      referred to.        Para 6         G

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1355 of 2015.

    From the Judgment and Order dated 02.07.2010 of the
High Court of JudicatureAndhra Pradesh at Hyderabad in Crl.   H
884        SUPREME COURT REPORTS              [2015] 12 S.C.R.

 \    Appeal No. 65 of 2006.
         Guntur Prabhaltar, G. Pramod Kumar, Advs., for the
      Appellant.
         A. Venkateswara Rao, D. Mahesh Babu,Advs., for the
 B    Respondent.
          The Judgment of the Court was delivered by
          C. NAGAPPAN, J. 1. Leave granted.

 r·     2. This appeal is directed against the Judgment dated
   2.7.2010 passed by the High Court ofAndhra Pradesh affirm-
   ing the conviction and sentence passed by the Additional Spe-
   cial JudgeforSPE andACB cases, City Civil Court Hyderabad,
   whereby the appellant-accused has been found guilty of com-
 D mission of offences under Sections 7, 13(1)(d) read with Sec-
   tion·13(2) of the Prevention of Corruption Act, 1988. The ap-
   pellant-accused has been sentenced to undergo rigorous im-
   prisonment for one year for each of the offences and also to
   pay a fine of Rs.1 000/- in default to suffer simple imprison-
 E ment for three months.

         3. The case of the prosecution is that the appellant-ac-
    cused was, at the relevant point of time working as Deputy
    Tahsildar, Civil Supplies Mandai Revenue Officer, Kurnool in
 F the State of Andhra Pradesh. The complainant PW-1 K.
    Sudhakar Reddy had a Fair Price Shop at Narsimha Reddy
    Nagar Kurnool. It is alleged by the complainant that the appel-
    lant-accused used to collect Rs.50/- per month from each fair
 Ci price shop dealer in Kurnool as monthly mamool and when he
    visited the shop of the complainant on 17.9.1993 he demanded
    Rs.300/- towards the monthly mamools from April 1993 by
    threatening to seize the stocks and foist a case against him.
    As the complainant was not willing to pay the said amount he
 11 had approached PW-7, Deputy Superintendant of Police, ACB,
    Kurnool and submitted Exh.P.1 complaint in writing on __.
          N. SUNKANNA v. STATE OF ANDHRA PRADESH                        885
                     [C. NAGAPPAN, J.]
'-·

      18.9.1993 to him.                                                 A

           4. PW-7 the Deputy Superintendant of Police, registered
      a case and issued Exh.P.9 F.I.R. On 20.9.1993 he secured
      PW-2 N. Ravindranath Reddy, Senior Assistant in the office of
      State Housing Corporation, Kurnool and LW-3 Abdul Jallel, to      B
      act as Panch Witnesses and explained the significance .of
      chemical test to them. He got the currency notes treated with
      phenolphthalein powder and entrusted the same to the com-
      plain ant. Exh.P-3 is the pre-trap proceedings. They reached
      Mand~l Revenue Office Kurnool at 1.30 p.m. Thereafter, ac-        c
      cording to the prosecution the complainant relayed pre-ar-
      ranged signal to them at 1.45 p.m. and they entered the office
      and sodium carbonate solution test was conducted on the right
      hand fingers of the accused as well as the left shirt pocket.
                                                                        D
      Both the tests proved to be positive and tainted currency notes
      were recovered from the possession of the accused. On
      completion of investigation the sanction was obtained and
      charge-sheet was filed against the appellant-accused. The
      charges were framed to which the accused pleaded not guilty.      E     ..
      In the trial PWs 1 to 8 were examined and Exh. P1 to P9 and
      M. Os 1 to 9 were marked on the side of the prosecution . The
      accused filed written statement and examined DWs 1 to 4
      and marked Exh. 01 to D8 on his side. The plea of the ac-
      cused was that target was fixed by the Department to collect      F
      contribution for purchase of National Savings Certificate and
      the amount that was given by the complainant was towards
      that only.

           5. We heard Mr. Guntur Prabhakar, learned counsel for G
      the appellant and Mr. A. Venkateswara Rao, learned counsel
      appearing. on behalf of the respondent-State. The complain-
      ant K. Sudhakar Reddy was examined as PW-1 and he did
      not support the prosecution case. He has testified that-Exh. P-
      1 complaint is in his hand writing but the contents are not true H
886         SUPREME COURT REPORTS                   [2015] 12 S.C.R.


A  and he wrote the same as dictated by the ACB officials and
   he gave the amount of Rs.300 to the accused with a request
   to purchase National Savings Certificates. The prosecution
   declared him as hostile. PW-2 N. Ravindranath Reddy, the
   Panch witness had testified that he was summoned by PW-7
 8
   DSP E. Damodar on 20.9.1993 and he went through the com-
   plaint and verified the contents from the complainant who ac-
   l<nowledged the fact that the accused had demanded a sum
   of Rs.300/- as illegal gratification. Though the complainant
 c did not support the prosecution case it is on the aforesaid basis
   the trial court as well as the High Court held the offences as
   proved and in doing so they have also relied on the legal pre-
   sumption under Section 20 of the Act.
            6. The prosecution examined the other fair price shop deai-
 D    ers in Kurnool as PWs 3, 4 and 6 to prove that the accused
      was receiving monthly mamools from them. PWs 4 and 6 did
      not state so and they were declared hostile. PW-3 though in
      the examination-in-chief stated so, in the cross-examination
 E    turned round and stated that the accused never asked any
      monthly mamool and he did not pay Rs. 50/- at any time. The
      prosecution has not examined any other witness present at
      the time when the money was demanded by the accused and
      also when the money was allegedly handed-over to the ac-
 F    cused by the complainant. The complainant himself had dis-
      owned his complaint and has turned hostile and there is no
      other evidence to prove that the accused had made any de-
      mand. In short there is no proof of the demand allegedly made
       by the accused. The only other material available is the recov-
 G     ery of the tainted currency notes from the possession of the
       accused. The possession is also admitted by the accused. It
       is settled law that mere possession and recovery of the cur-
       rency notes from the accused without proof of demand will not
       bring home the offence under Section 7, since demand of ille-
 H     gal gratification is sine-qua-non to constitute the said offence.
     N. SUNKANNA v. STATE OF ANDHRA PRADESH                         887
                [C. NAGf\PPAN, J.]

The. above also will be conclusive'
                                    insofar as the offence under A
Section 13( 1)(d) is concerned as in the absence of any proof
of demand for illegal gratification the use of corrupt or illegal
means or abuse of position as a public servant to obtain any
valuable thing or pecuniary advantage cannot be held to be
established. It is only on proof of acceptance of illegal gratifi- B
cation that presumption can be drawn under Section·20 of the ·
Act that such gratification was received for doing or.forbear-
ing to do any official act. Unless there is proof of demand of
illegal gratification proof of ~cceptance will not follow. Refer- c
ence may be made to the two decisions of three-Judge Bench
of this Court in B. Jayaraj vs. State of Andhra Pradesh
[(2014) 13 SCC 55] and P. Satyanarayna Murthy vs. The
District Inspector of Police and another [(2015 (9) SCALE
724].                                                              D
     7. In the present case the primary facts on the basis of
which the legal presumption under Section 20 can be drawn
are wholly absent. The judgments of the Courts below are,
therefore, liable to be set aside. For the aforesaid reasons
                                                                 E
the appeal is allowed and the conviction of the appellant un-
der Section 7 and under Section 13(1 )(d) read with Section
13(2) of the Act and the sentences imposed are set aside ~nd
he is acquitted of the charges. The bail bond, if any, furnished
by the appellant be released .                                   F
Kalpana K. Tripathy                               Appeal allowed.