In a recent Judgment of NEERAJ DUTTA  VS. STATE (GOVT. OF N.C.T. OF DELHI) Supreme Court has enunciated that conviction under the provisions of the Prevention of Corruption Act, 1988 is not bad in the absence of direct evidence and the guilt could be brought home in the presence of circumstantial evidence.

The main question which was there before a five judges bench of the Supreme Court was “in the absence of the complainant letting in direct evidence of demand owing to the non-availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence”.

And the Supreme Court has answered the same saying that “In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and 70 Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution.”

From the discussion made by the Supreme Court in its 71 pages judgment, after considering the earlier decisions of the Supreme Court, the Supreme Court held as under:-

(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.

(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.

(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

(f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.

(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.

While discussing the issue, Supreme Court considered the following legal authorities:-

• Subash Parbat Sonvane vs. State of Gujarat (2002) 5 SCC 86
• Ram Krishan vs. state of Delhi AIR 1956 SC 476
• C.K. Damodaran Nair vs. Government of India (1997) 9 SCC 477
• B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55
• P. Satyanarayana Murthy vs. D. Inspector of Police, State of A.P. (2015) 10 SCC 152
• M. Narsinga Rao vs. State of A.P. (2001) 1 SCC 691
• A. Subair vs. State of Kerala (2009) 6 SCC 587
• State of Kerala vs. C.P.Rao (2011) 6 SCC 450
• Suresh Budharmal Kalani vs. State of Maharashtra (1998) 7 SCC 337
• Hazari Lal vs. State (Delhi Admn.) (1980) 2 SCC 390
• K. Shanthamma vs. State of Karnataka (2022) 4 SCC 574
• State of U.P. vs. Ram Asrey 1990 Supp SCC 12
• Mukhtiar Singh vs. State of Punjab; (2017) 8 SCC 136
• C.M. Sharma vs. State of Andhra Pradesh (2010) 15 SCC 1
• State of Maharashtra vs. Dhyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200
• Sukumaran vs. State of Kerala (2015) 11 SCC 314
• Sunkanna vs. State of Andhra Pradesh (2016) 1 SCC 713
• State of Madhya Pradesh vs. Ram Singh (2000) 5 SCC 88
• State of Rajasthan vs. Babu Meena (2013) 4 SCC 206
• Amarjit Singh vs. State (Delhi Admn.) 1995 Cr LJ 1623 (Del)
• Kumar Exports vs. Sharma Carpets (2009) 2 SCC 513
• Krishna Janardhan Bhat vs. Dattatraya G Hegde (2008) 4 SCC 54
• State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61
• Dhanvantrai Balwantrai Desai vs. State of Maharashtra AIR 1964 SC 575
• Navaneethakrishnan vs. State by Inspector of Police AIR 2018 SC 2027
• Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116
• Prakash vs. State of Rajasthan (2013) 4 SCC 668
• Kundan Lal Rallaram vs. The Custodian, Evacuee Property Bombay AIR 1961 SC 1316
• Madhukar Bhaskarrao Joshi vs. State of Maharashtra (2000) 8 SCC 571
• State vs. Dr. Anup Kumar Srivastava (2017) 15 SCC 560
• State of Andhra Pradesh vs. V. Vasudeva Rao (2004) 9 SCC 319
• Selvaraj vs. State of Karnataka (2015) 10 SCC 230
• Nayan Kumar Shivappa Waghmare vs. State of Maharashtra (2015) 11 SCC 213
• Prakash Chand vs. State (Delhi Admn.) (1979) 3 SCC 90
• Sat Paul vs. Delhi Administration (1976) 1 SCC 727

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