Neeraj Dutta v. State (Government of NCT of Delhi), (2023) 4 SCC 731

The Constitution Bench decision that governs proof in every bribery case. The question referred was what happens when the complainant is unavailable to prove the demand, because he has died, cannot be found, or has turned hostile. The Court held that proof of demand and acceptance remains indispensable, but that it may be established by circumstantial evidence where direct evidence is unavailable. The decision therefore preserved the ingredient while removing the rule that a prosecution necessarily fails with its complainant.

1. The Question Referred

A conflict had developed in the decisions of two-judge Benches. One line held that in the absence of direct evidence of demand, principally the complainant's testimony, the offence under the then Sections 7 and 13(1)(d) could not be made out and the presumption under Section 20 could not be invoked. Another line permitted the demand to be inferred from the circumstances. The matter was referred to a Bench of five judges to settle whether, where evidence of the complainant is unavailable because he is dead, unavailable or has turned hostile, an inference of demand and acceptance may be drawn from the other material.

2. Proof of Demand

1. It remains a fact in issue. Demand or offer, and acceptance or obtainment, of an undue advantage are facts in issue which the prosecution must prove; they are a sine qua non for conviction.
2. Mere recovery is not enough. Recovery of tainted currency from the accused, without proof of demand and acceptance, does not establish the offence, because possession is equivocal.
3. The presumption follows proof and does not replace it. Section 20 operates only after acceptance of an undue advantage is proved; it presumes the purpose of the acceptance, not the acceptance itself.

3. Proof by Direct Evidence

The ordinary route. Direct evidence may be oral or documentary: the testimony of the complainant as to the demand made to him, the testimony of the shadow witness who overheard it repeated at the trap, a recording of the conversation, or a written communication. Where such evidence exists and is believed, the case proceeds in the ordinary way and the presumption attaches once acceptance is established.

4. Proof by Circumstantial Evidence

• It is permissible. Where direct evidence is unavailable, demand and acceptance may be proved by circumstantial evidence.
• The material relied on includes the evidence of the trap and shadow witnesses, the recovery and the washes, the pending file, application or work which supplied the occasion for the demand, the conduct of the accused at the time of the trap, and any attempt to conceal or dispose of the money.
• The inference must be the only reasonable one. The ordinary rule governing circumstantial evidence applies, and it is what prevents the decision from becoming a route to conviction on recovery alone.
• The foundational facts must still be established before the presumption in Section 20 can be applied.

5. The Complainant Who Has Died or Cannot Be Found

The death or unavailability of the complainant does not by itself entitle the accused to acquittal. The trial proceeds on the remaining evidence, and the court considers whether the demand and acceptance can be inferred from it. Where a statement of the complainant was recorded in circumstances that make it admissible under the law of evidence, it may be used according to those rules; otherwise the case rests on the other witnesses and the circumstances.

6. The Hostile Complainant

1. Hostility is not fatal. A complainant who resiles does not destroy the prosecution, and the court examines the rest of the material.
2. The evidence is not wholly effaced. The portions of the testimony of a witness declared hostile which are credible and consistent with the rest of the evidence may be relied on, a principle applied repeatedly in trap cases.
3. The reason hostility is common in this class of case is worth stating: the complainant is frequently dependent on the department concerned, and since 2018 he is himself exposed under Section 8 unless he was compelled and reported within seven days.

7. Acceptance and Obtainment

The Court used the expression demand or offer, and acceptance or obtainment, which keeps the two sides of the transaction and the two modes of receipt in view. Obtainment connotes securing the advantage by the public servant's own effort, ordinarily following a demand; acceptance connotes receiving what is offered. Either satisfies the section, and an attempt to obtain is expressly covered, so a demand followed by nothing remains an offence.

8. The Presumption under Section 20

• It is triggered by proof of acceptance or obtainment of an undue advantage, whether that proof is direct or circumstantial.
• It is mandatory once triggered, the words being shall be presumed.
• It is rebuttable, and the accused discharges the burden on the preponderance of probabilities, not beyond reasonable doubt.
• It does not dispense with the foundational facts, which is the proposition that ties the whole decision together.

9. Related Topics and Provisions