Not Necessary That Bribe Amount Should Be Substantial To Draw Presumption Under S.20 Prevention Of Corruption Act : Supreme Court

While convicting a government servant for taking a bribe of Rs.2000, the Supreme Court observed that it was not necessary for the amount involved to be substantial to draw the presumption under Section 20 of the Prevention of Corruption Act, 1988.

As per Section 20(3), the Court has the discretion to refrain from drawing adverse presumption against the public servant if the amount involved is trivial. The Supreme Court observed that the value of gratification has to be considered in proportion to the service proposed to be done.

The Court also held that the presumption becomes irrelevant when the agreement to receive gratification is factually proved. 

The bench of CJI Sanjiv Khanna, Justice Sanjay Kumar and Justice R Mahadevan was deciding an appeal against the High Court's order acquitting the respondent (accused) in a case for allegedly demanding Rs.2000 to clear a surrender leave salary cheque of a school teacher (complainant). The respondent was charged with offences under  Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988.

S. 20 of the PCA provides that where it is proved that the public servant has accepted or obtained any undue advantage, unless the contrary is proven, that it shall be presumed that such acceptance of undue advantage was with a motive or reward under S.7. 

The Court held that the presumption under Section 20 was not necessary when the nexus between the demand and acceptance of illegal gratification has been established.

"Section 20 would come into operation only when there is no nexus between the demand and the action performed or sought to be performed. But, when the fact of receipt of payment or an agreement to receive the gratification stands proved, there is a clear case of nexus or corroboration and the presumption itself is irrelevant," stated the judgment authored by Justice R Mahadevan.

The High Court its order dated February 16, 2022, had set aside the conviction order of the Trial Court of October 13, 2015 and acquitted the respondent.

The respondent, who was working as First Division Assistant in the office of the Sub Treasury in 2009 was accused of the offence of demanding illegal gratification of Rs.2000/- for passing the bill for encashment of surrender leave salary of the Complainant. The main argument of the prosecution has been that even if the respondent has no pending work with him, and he demands and accepts any gratification, the essential ingredients for the offence under Section 7 of the Act get attracted.

Notably, the trial court convicted the respondent by placing reliance on the trap laid by the Lokayukta Police on information by the complainant. 

The High Court however, acquitted the respondent on the ground that on the date of the complaint, that is August 5, 2009 there was no pending work with the respondent for him to demand a bribe for clearing the same. The Court noted that the respondent had passed the bill on July 29, 2009 and the cheque was ready on July 30, 2009. 

The High Court relied upon the decision of A.Subair v. State of Kerala (2009) 6 SCC 587 where it was held that the essential ingredients of S.7 (Offence of Public Servant Taking Bribe) were (1) that the person accepting the gratification should be a public servant; and (2) 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 showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person. 

In the appeal by the State of Karnataka before the Supreme Court, the bench upheld the factual findings of the trial Court based on the appreciation of the witnesses and evidences. The Court negated the observation of the High Court by observing that the leave salary cheque was neither issued to the complainant nor intimated to the school authorities (where the complainant worked) till August 5, 2009. The Court observed that " no cheque was issued, and it was kept pending as on the date of trap."  

The Court concluded that the two basic elements of 'demand' and 'acceptance' of gratification had been proved and the presumption under S.20 could be invoked. 

The bench also observed that reliance placed on the decision of A Subair was incorrect as there the facts differed from the present scenario. 

The Court however referred to the erstwhile S. 20 of the PCA before it was amended in 2018. As per S. 20(3), " 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 inference of corruption may fairly be drawn." 

The Court held that the amount of the gratification has to be considered in light of the act sought to be performed in return for the said undue advantage. 

"Insofar as the reference to sub section (3) to Section 20 regarding the triviality of the gratification, the act sought or performed, and the amount demanded cannot be considered in isolation to each other. The value of gratification is to be considered in proportion to the act to be done or not done, to forbear or to not forebear, favour or disfavour sought, so as to be trivial to convince the Court, not to draw any presumption of corrupt practice." 

It was further added that it may not be necessary that S.20 be invoked only when a large sum is demanded by the public servant. S.20 could only be applied where there is clear nexus between the receipt payment of a sum demanded and an act done in exchange for it. But when the fact that an agreement to receive gratification is proved, a nexus is established by default. 

"It is also not necessary that only if substantial amount is demanded, the presumption can be drawn. The overall circumstances and the evidence will also have to be looked into." 

The onus under S.20 lies upon the accused just like in S.118 of the NIA 1881. 

"The presumption under Section 20 is similar to Section 118 of the Negotiable Instruments Act, 1881, where the onus is on the accused to prove that he is not guilty of the offences charged."

The Court observed that since s. 13 on Criminal Misconduct by Public Servant does not place emphasis on the amount of the sum demanded but instead on the act of intentional illicit enrichment, S.20(3) would not be a rule but an exception. 

"The first two limbs under subsections (1) and (2) of Section 13 make it clear that adequacy of consideration is irrelevant to draw the presumption. That apart, sub-section (3) only grants a discretion to Court to decline from drawing any presumption if the amount is so trivial so that such inference of corruption is not fairly possible in the facts of the case."

"Therefore, it is not a rule but an exception available to the Court to exercise its discretionary power in the facts and circumstances of the case. In the present facts of the case, we are not inclined to exercise such discretion. As such, the judgment of acquittal passed by the High Court is illegal, erroneous and contrary to the materials on record." 

Case Details : THE STATE OF KARNATAKA v. CHANDRASHA CRIMINAL APPEAL NO.2646 OF 2024

Citation : 2024 LiveLaw (SC) 926

Click here to read the judgment