A. SUBAIR versus STATE OF KERALA

Citation: [2009] 9 S.C.R. 1058 · Decided: 26-05-2009 · Supreme Court of India · Bench: V.S. SIRPURKAR · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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[2009] 9 S.C.R. 1058 
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A 
A. SUBAIR 
v. 
STATE OF KERALA 
(Criminal Appeal No. 639 of 2004) 
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B 
MAY 26, 2009 
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[V.S. SIRPURKAR AND R.M. LODHA, JJ.] 
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Prevention of Corruption Act, 1988 - ss.7, 13(1)(d) rlw 
13(2) and 20 - Public servant allegedly took gratification other 
c than legal remuneration in respect of official act - Conviction 
by Trial .Court - Affirmed by High Court - Propriety of - Held: 
On facts, not proper -Complainant was not tendered in 
evidence by prosecution - No explanation was given therefor 
- In absence of examination of complainant, there was no 
D substantive evidence to prove the factum of demand -
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Besides, prosecution neither relied upon evidence of 
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witnesses present at the time of raid nor evidence of panch 
witnesses - Evidence of only remaining witness, on which the 
Courts below heavily relied upon, was highly doubtful - Also, 
E inference of corruption could not be fairly drawn as the alleged 
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demand of Rs.251- was too trivial - Mere recovery ofcurrency 
notes, in denominations of Rs.201- and Rs.51-, by itself, could 
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not be held to be proper or sufficient proof of demand and 
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acceptance of bribe - Evidence produced by prosecution had 
F neither quality nor credibility and was not sufficient to bring 
home the guilt of accused - Accused-appellant entitled to 
benefit of doubt. 
The complainant had applied for driving licence 
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which was issued but not in the book form as required. 
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G According to the prosecution, for delivery of driving 
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licence in book form, appellant, a Lower Division Clerk 
in Sub-Regional Transport Office, demanded and 
received an amount of Rs.251· from the complainant. The 
Courts below convicted the appellant under Sections 7 
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1058 
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A. SUBAIR v. STATE OF KERALA 
1059 
and 13(1)(d) r/w Section 13(2) of the Prevention of the 
A 
Corruption Act, 1988. 
In appeal to this Court, the question which arose for 
consideration was whether there was sufficient legal 
evidence on record to convict the appellant under 8 
sections 7 and 13(1)(d) r/w s.13(2) of the Prevention of 
Corruption Act, 1988. 
Allowing the appeal, the Court 
HELD: 1.1. The essential ingredients of Section 7 of c 
the Prevention of Corruption Act, 1988 are:(i) that the · 
person accepting the gratification should be a public 
servant and (ii) that he should accept the gratification for 
himself and the gratification should be as a motive or 
reward for doing or forbearing to do any official act or for 0 
showing or forbearing to show, in the exercise of his 
official function, favour or disfavour to any person. [Para 
7] (1067-C-D] 
1.2. Insofar as section 13(1 )(d) of the Act is 
concerned, its essential ingredients are:(i) that he should 
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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. The primary requisite of F 
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 the absence of 
proof of demand or request from the public servant for a 
valuable thing or pecuniary advantage, the offence under G 
Section 13(1) (d) cannot be held to be established. [Paras 
8 and 10] [1067-D-E; 1068-C-D] 
C.K. Damodaran Nair v. Government of India (1997) 9 
sec 477, referred to 
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1060 
SUPREME COURT REPORTS [2009] 9 S.C.R. 
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A 
2. In the present case, the complainant has not been 
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tendered in evidence by the prosecution. PW-12 (10) in 
his entire deposition has not stated a word as to why the 
complainant was not examined or why it was not possible 
to tender him in evidence. In the absence of examination 
B 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 
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because he was not available in India, there was 
c justification of non-examination of the complainant. It is 
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 
D out their own reason for not tendering the complai

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