NEERAJ DUTTA Vs. STATE (GOVT. OF N.C.T. OF DELHI)

JUDGEMENT

(1.) By Order dtd. 27/8/2019, a Three Judge Bench of this court has referred the question of law framed to be decided by a Bench of appropriate strength. That is how this batch of cases has been referred to the Constitution Bench comprising of five judges by Hon 'ble the Chief Justice of India. For easy reference, the Order of Reference dtd. 27/8/2019 is extracted as under:

(2.) Thus, the moot question that arises for answering the reference is, in the absence of the complainant letting in direct evidence of demand owing to the non-availability of the complainant or owing to his death or other reason, whether the demand for illegal gratification could be established by other evidence. This is because in the absence of proof of demand, a legal presumption under Sec. 20 of the Prevention of Corruption Act, 1988 (for short 'the Act ') would not arise. Thus, the proof of demand is a sine qua non for an offence to be established under Ss. 7, 13(1)(d)(i) and (ii) of the Act and de hors the proof of demand the offence under the two Sec. cannot be brought home. Thus, mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof in the absence of proof of demand would not be sufficient to bring home the charge under Ss. 7, 13(1)(d)(i) and (ii) of the Act. Hence, the pertinent question is, as to how demand could be proved in the absence of any direct evidence being let in by the complainant owing to the complainant not supporting the complaint or turning "hostile " or the complainant not being available on account of his death or for any other reason. In this regard, it is necessary to discuss the relevant Ss. of the Evidence Act before answering the question for reference.

(3.) Before proceeding further, it would be useful to refer to the relevant provisions of the Act. Ss. 7,13(1)(d)(i) and (ii) and 20 of the Act as they stood prior to their amendments are extracted as under: