Failure of Prosecution to prove the demand for illegal gratification is fatal despite recovery

The Hon’ble Apex Court in K. Shanthamma Vs The State of Telangana, while acquitting an Accused, recently held that the proof of demand of bribe by a public servant and its acceptance is sine qua non for establishing an offence under Section 7 of the Prevention of Corruption Act, 1988 (“PC Act”).

Prosecution’s Case
The Appellant was working as a Commercial Tax Officer at Secunderabad. The Complainant at the time of the incident was working as a supervisor in Farmers’ Service Co-operative Society (‘the Society’). He was in charge of filing returns of commercial tax of the Society. Till February, 2000, the returns of the Society for the year 1996-97 remained pending for assessment. The Appellant issued a notice dated 14th February, 2000 calling upon the Society to produce its cash book, general ledger, and purchase and sales statements for the year 1996-97.

It was alleged by the Complainant that on 24th February, 2000, when the Complainant met the Appellant, she demanded a bribe of Rs. 3,000/- for issuing an assessment order. Though he showed unwillingness to pay the amount, the Appellant demanded the amount for three days consecutively. On 29th February, 2000, the Complainant requested the Appellant to issue the final assessment order, however the Appellant refused to do so until the bribe amount was given. On 23rd March, 2000, when the Complainant approached the Appellant once again, she scaled down her demand to Rs. 2,000/- to issue the final assessment order.

The Complainant filed a written complaint with the Deputy Superintendent of Police, Anti-Corruption Bureau (“ACB”). Accordingly, a trap was laid. It is alleged that when the Complainant tendered the tainted currency notes of Rs. 2,000/- to the Appellant in her office, instead of taking the amount directly, she took out a diary from her table drawer and asked the Complainant to keep the currency notes in the diary. After closing the diary, the Appellant kept the same in her table drawer. She locked the table drawer and kept the key in her handbag. After that, she called Ahmed Moinuddin, Assistant Commercial Tax Officer (“ACTO”), along with the record. The Appellant signed on the last page of the ledger and cash book by putting the date as 26th February, 2000. Thereafter, the Appellant directed the attender to affix an official rubber stamp below her signature. The Complainant collected the general ledger and cash book from the attender, and after coming out of the office, he gave a signal to the trap party which thereafter entered the office of the Appellant.

The Deputy Superintendent of Police found a wad of currency notes in the diary. The numbers on the currency notes tallied with the serial numbers of currency notes described in the pre-trap proceedings. Subsequently, the seizure was carried out, and necessary formalities were completed. The Special Court found that the demand of bribe and acceptance of bribe was proved by the prosecution and the High Court had affirmed the said finding.

Defence Case

  1. The defence of the Appellant is that at about 5:30pm on the day of the incident, she went to the washroom attached to her chamber before leaving the office. When she came back, she found the Complainant sitting in her room. She informed him that the file was no longer pending with her and called the ACTO through the attender and returned the account books to the Complainant. The fact that the washroom was attached to her chamber is proved by certain witnesses. It was the Complainant who deliberately kept the currency notes in the diary lying on her table when she went to the washroom before leaving her office.
  2. The notice dated 26th February 2000 issued by the Appellant was admittedly served on the said Society only on 15th March, 2000, which recorded that the net turnover of the said Society was nil in the year 1996-97. Therefore, the Society was not liable to pay any tax. Thus, this makes the entire prosecution case about the demand extremely doubtful.
  3. The ACTO who testified against the Appellant had a grudge against her as admittedly on 22nd March, 2000, the Appellant had served a memo on him pointing out the defaults committed by him in the discharge of his duties.
  4. The witness who was instructed by the Deputy Superintendent of Police, ACB to accompany the Complainant inside the chamber of the Appellant, did not enter the chamber.
  5. The demand for a bribe by the Appellant was not proved, and the evidence of the Complainant to that effect was an improvement.
  6. When the sodium carbonate test was conducted, the fingers of the Appellant did not turn pink; therefore, it was not established that she accepted the currency notes.
  7. The alleged recovery of currency notes was shown from a diary, however, the recovery was not proved in the trial.
  8. Due to the fact that there is no proof of demand and the acceptance of the bribe has not been established, a presumption under Section 20 of the PC Act will not apply.

Prosecution’s Contention

  1. The evidence of the Complainant on continuous demands made by the Appellant is trustworthy as there is no reason for him to make any false allegation or falsely implicate the Appellant.
  2. The tainted notes were found in the diary of the Appellant, which was kept in her table drawer. She was in possession of keys of the table drawer. She herself opened the table drawer and produced the diary from her custody in which the tainted notes were kept.
  3. Though notice may have been served on the Society on 15th March, 2000 recording that the Society is not liable to pay any amount, the Appellant did not issue the final assessment order and the demand for bribe was pertaining to that.
  4. The final assessment order was issued on the day of the trap.

Appreciation of evidence

  1. The Complainant in his cross-examination accepted that the notice dated 26th February, 2000 issued by the Appellant was received by the Society on 15th March, 2000 in which it was mentioned that after verification of the books of accounts of the Society, exemption from payment of commercial tax as claimed by the said Society was allowed. The issue of the final assessment order was only a procedural formality. Therefore, the prosecution’s case about the demand of bribe made on 23rd March, 2000 by the Appellant appears to be highly doubtful. Furthermore, the evidence of the Complainant about the demand for bribe by the Appellant is not at all reliable as there have been improvements in his statements. Hence, it was concluded that the demand made by the Appellant has not been conclusively proved.
  2. In the pre-trap mediator report, it has been recorded that R. Hari Kishan, was to accompany the Complainant at the time of offering the bribe. Witnesses have deposed that the Deputy Superintendent of Police, ACB, had instructed R. Hari Kishan to accompany the Complainant inside the chamber of the Appellant and observe what transpires between the Appellant and the Complainant. Witnesses further deposed that only the Complainant entered the chamber of the Appellant and R. Hari Kishan waited outside the chamber. The prosecution offered no explanation as to why the only independent witness who was to enter the chamber with the Complainant, failed to do so at the time of the trap, leaving the Complainant as the only witness to the alleged demand and acceptance.
  3. L. Madhusudhan was working as godown incharge in the Society. He stated that on 15th March 2000, when he visited the Appellant’s office, the Appellant enquired whether he had brought the demanded amount of Rs. 3,000/-. However, he did not state that the Appellant demanded the said amount for granting any favour to the said society.
  4. Ahmed Moinuddin was ACTO at the relevant time. He was not a witness to the alleged demand. However, in the cross-examination, he admitted that the Appellant had served a memo dated 21st March, 2000 to him alleging that he was careless in performing his duties.

The Single Judge relied upon the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. where the Apex Court had summarised the well-settled law that the proof of demand of illegal gratification is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the PC Act and in absence thereof, unmistakably the charge therefore, would fail. It was reiterated that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, and would thus not be sufficient to bring home the charge under these two Sections of the PC Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the PC Act would not entail his conviction thereunder.

In the present case the demand of illegal gratification by the Appellant was not proved by the prosecution. Thus, the demand which is sine quo non for establishing the offence under Section 7 of the PC Act was not established. Hence, the Appeal was allowed and the Appellant was acquitted for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act.

By - Lakshmi Raman