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TMI Blog2015 (9) TMI 1666X X X X Extracts X X X X X X X X Extracts X X X X ..... umption Under Section 20 of the Act would also not arise. The proof of demand of illegal gratification, thus, is the gravamen of the offence Under Sections 7 and 13(1)(d)(i) (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the 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 Act would not entail his conviction thereunder. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the Appellant Under Section 13(1)(d)(i) (ii) read with Section 13(2) of the Act as well - impugned judgment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence in support of the charges. As the complainant- S. Jagan Mohan Reddy had expired prior thereto, he could not be examined by the prosecution. 4. After the closure of the evidence of the prosecution, the Appellant was examined Under Section 313 Code of Criminal Procedure and was confronted with all the incriminating materials brought on record. He, however, denied the same. 5. The learned trial court, on an elaborate analysis of the evidence available, convicted the Appellant Under Sections 7 and 13(1)(d)(i) (ii) read with Section 13(2) of the Act and sentenced him to undergo R.I. for one year on each count and to pay fine of ₹ 1000/-, in default to suffer S.I. for three months for each offence. The sentences of imprisonment were, however, ordered to run concurrently. 6. As adverted to hereinabove, the High Court in the appeal preferred by the Appellant, while upholding his conviction Under Section 13(1)(d)(i) (ii) read with Section 13(2) of the Act, did set at naught his conviction Under Section 7 of the Act. The sentence qua his conviction Under Section 13(1)(d)(i) (ii) read with Section 13(2) of the Act was, as a corollary, sustained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-G. Sudhakar. 10. Learned Counsel for the Respondents sought to distinguish the decision rendered in B. Jayaraj (supra) contending that in the face of persuasive evidence of demand on record, the same is of no avail to the Appellant. 11. The materials on record have been duly traversed by us in order to adequately appreciate and weigh the competing contentions. Though dealt with exhaustively by the two courts below, having regard to the profuse reference to the evidence on record made in the course of the arguments, we consider it to be apt to advert thereto in bare essentials and to the extent indispensable. Admittedly, the complainant S. Jagan Mohan Reddy, the then Principal of the Rama Typewriting Institute, Laxminagar, B. Camp, Kurnool could not be examined as a witness for the prosecution, as he had expired before the trial. To reiterate, in his complaint lodged with the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool Range, Kurnool on 3.10.1996, he alleged that on the same date, the Appellant, who was then the Assistant Director, Commissionerate of Technical Education, Hyderabad, had visited his institute and had pointed out that because of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Appellant, accordingly, kept the amount in the pocket of his shirt and it was then on signal being received by the trap team, he was intercepted and apprehended with the money accepted by him. 13. PW1-S. Udaya Bhaskar has stated on oath that at the relevant point of time, he was the Assistant Engineer in Panchayat Raj Department, Orvakal and that as planned by the investigating agency to entrap the Appellant, he along with the complainant had gone to room No. 68, Meenakshi Lodge, Kurnool on 4.10.1996 for meeting the Appellant. Both of them entered into the room of Appellant, whereupon the complainant handed over one renewal application along with the challan to the Appellant. This witness stated that on this, the Appellant enquired as to whether the complainant had brought the amount which he had directed him to bring on the previous day. The witness stated that the complainant then took out the currency notes amounting to ₹ 500/- from the pocket of his shirt as arranged and did hand over the same to the complainant, who after counting the same, kept those in the pocket of his shirt. The witness also testified, that he then told the Appellant that he too ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic 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 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 (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine. --- --- --- --- --- --- --- --- 13. Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct,- --- --- --- --- (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of proof of demand, such legal presumption Under Section 20 of the Act would also not arise. 21. The proof of demand of illegal gratification, thus, is the gravamen of the offence Under Sections 7 and 13(1)(d)(i) (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. 22. 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 Act would not entail his conviction thereunder. 23. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the Appellant the renewal application, the latter enquired from the complainant as to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of may be true but has to upgrade it in the domain of must be true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 26. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the Appellant Under Section 13(1)(d)(i) (ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order of the High Court is hereby set-aside. The Appellant is on bail. His bail bond stands discharged. Original record be s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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