MRS. NEERAJ DUTTA versus STATE (GOVT. OF NCT OF DELHI)

Citation: [2019] 4 S.C.R. 54 · Decided: 28-02-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Matter referred to larger bench

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 4 S.C.R.
[2019] 4 S.C.R. 54
54
MRS. NEERAJ DUTTA
v.
STATE (GOVT. OF NCT OF DELHI)
(Criminal Appeal No. 1669 of 2009)
FEBRUARY 28, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Prevention of Corruption Act, 1988 – s.7 & 13(1)(d) r/w.
s.13(2) – Prosecution case that Appellant-accused no.1 demanded
and accepted illegal gratification – Complainant passed away before
the trial so he was not examined – Trial court convicted appellant-
accused no.1  and accused no.2 u/ss. 7 and s.13(1)(d) r/w. s.13(2)
of the Prevention of Corruption Act – High Court affirmed the
conviction of the appellant-accused no.1 and acquitted accused
no.2 – Appellant contended that when the complainant passed away,
primary evidence of demand was not forthcoming and when the
prosecution could not establish the demand by such primary
evidence, the conviction of the appellant cannot be sustained and
placed reliance upon P. Satyanarayana Murthy v. District Inspector
of Police, State of Andhra Pradesh and another (2015) 10 SCC 152 –
Respondent contended that P. Satyanarayana had not taken note
of the consistent view taken by the Supreme Court – Held: In light
of the consistent view taken by the Supreme Court in various
judgments and a different observation and findings recorded by
Supreme Court in P. Satyanarayana Murthy case – The issue
requires consideration by the larger Bench – Thus, matter referred
to the larger bench.
Referring the matter to larger Bench, the Court
HELD: 1. Contention of the appellant is that mere proof of
receipt of money by the accused in the absence of proof of demand
of illegal gratification is not sufficient to prove the guilt of the
accused.  It was contended that when the complainant passed
away, primary evidence of demand is not forthcoming and when
the prosecution could not establish the demand by such primary
evidence, the conviction of the appellant cannot be sustained.
[Para 5][58-B, C]
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MRS. NEERAJ DUTTA v. STATE (GOVT. OF NCT OF DELHI)
2. In support of his contention, the appellant placed reliance
upon P. Satyanarayana Murthy v. District Inspector of Police, State
of Andhra Pradesh and another.  In the said case, the complainant
died before the trial and thus could not be examined by the
prosecution. [Para 6][58-C]
3.  The State has drawn attention to number of judgments
where accused was convicted even when the evidence of
complainant was not available either due to death of complainant
or where the complainant had turned hostile.  In Kishan Chand
Mangal v. State of Rajasthan, by the time of trial, the complainant
expired and he could not be examined. [Para 8][55-G]
4.  In Hazari Lal v. State (Delhi Administration), the
complainant was declared hostile and the only other evidence
was that of Inspector (PW-8) to whom the complainant made
statement when he went to lodge the complaint and another
witness who has supported the prosecution case only in some
particulars.  Based on the evidence of the Inspector who laid the
trap and panch witness and observing that it is not necessary
that the passing of money should be proved by direct evidence.
[Para 9][60-B, C]
5.  The direct or primary evidence of demand may not be
available at least in three instances:- (i) where the complainant is
dead and could not be examined; (ii) complainant turned hostile;
and (iii) complainant could not be examined either due to non-
availability or other reasons.  Direct proof of demand may not be
available in all the above instances but from the evidence of panch
witness, acceptance of money was proved by Phenolphthalein Test
and by raising presumption under Section 20 of the Act, it is
permissible to draw inference to prove the demand. [Para 11]
[62-E]
6.  This Court is of the opinion that the following issue
requires consideration by the larger Bench:-
“The question whether in the absence of evidence of
complainant/direct or primary evidence of demand of illegal
gratification, is it not permissible to draw inferential deduction of
culpability/guilt of a public servant under Section 7 and Section
13(1)(d) read with Section 13(2) of Prevention of Corruption Act,
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SUPREME COURT REPORTS
[2019] 4 S.C.R.
1988 based on other evidence adduced by the prosecution.”  [Para
14][63-B, C]
7. In the light of the consistent view taken by this Court in
various judgments, this Bench has some reservation in respect
of the observation and findings recorded by this Court in P.
Sat

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