Reportable

IN THE SUPREME  COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 639 OF 2004

A. Subair                   ..Appellant

Versus

State of Kerala           ..Respondent

J U D G E M E N T

R.M. LODHA, J.

       The  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.

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 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, Thiruvanathapuram.  

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  

2

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  

3

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.  

3. The appellant was arrested and later on released on  

bail.   

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  

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.

5. Section 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.”

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, - (a) ……. (b) …….

(c)  ……. (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 public interest;  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.”

7. The 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  

5

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 person.

8. Insofar 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.

9. In 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 was held:

“12. The 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  

6

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”.”

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  

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.

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  

Sections 7 and 13(1)(d) read with 13(2)?

12. Pertinently,   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  

7

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.  

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 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  

8

allegedly made by the accused.  The  factum of demand,  thus,  

remains not proved.

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  

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  

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.

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 evidence  

of PW-10 and, in our considered view, his evidence suffers from  

serious infirmities.  The Special Judge as well as the High court  

9

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.   

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  

10

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 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 be  

not  only  unsafe  but  dangerous  to  rest  conviction  upon  his  

testimony.  

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 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.

20. The High Court drew presumption under Section 20 of  

the Act for charge under Section 7.  Based on that,  it was held  

11

that the prosecution has proved the  offence  punishable under  

Section 7 of the Act.

21. Section 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 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 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. (3)    Notwithstanding   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.”

22. Sub-Section (3) is a “non-obstante clause”.  It provides  

that where the gratification is trivial and the Court is of opinion that  

12

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.

23. Mere 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.

13

24. Consequently, 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 are cancelled.

……………………J (V.S. Sirpurkar)

… …………………J

(R.M. Lodha ) New Delhi, May 26 , 2009

14