Withholding Material Electronic Evidence Without Justification Invites Adverse Inference Against Prosecution: Supreme Court

"Adverse inference may be drawn against the prosecution where material electronic evidence is withheld without justification. The failure of the prosecution to produce the alleged tape-recorded conversation assumes greater significance because the same could have conclusively established the persons present at the time of the alleged demand and the exact nature of the conversation." Supreme Court of India, in a significant judgment dated May 27, 2026, held that the failure of a prosecuting agency to produce material electronic evidence in its possession, such as tape-recorded conversations of a bribe demand, entitles the court to draw an adverse inference against the prosecution.

A bench comprising Justice Pankaj Mithal and Justice Prasanna B. Varale observed that withholding such "best evidence" is fatal to the prosecution's case, especially when the foundational facts of demand and acceptance are in dispute.

The court made these observations while dismissing appeals filed by the State of Uttar Pradesh against a 2019 order of the Allahabad High Court, which had acquitted several Central Excise officials in a corruption case dating back to 1995. The High Court had reversed the trial court's conviction on the grounds that the prosecution miserably failed to establish the basic requirements of demand and acceptance of illegal gratification.

The case originated in January 1995, when R.K. Srivastava (Superintendent) and inspectors A.K. Gaba and Alok Gupta allegedly seized records from a factory without providing an acknowledgment. It was alleged that R.K. Srivastava demanded a bribe of ₹80,000 from the complainant, Kuldeep Tiwari, to return the documents. Following a CBI trap, money was recovered from the residence of the accused, leading to their conviction by a Special Judge in 2014.

The convicts challenged this before the Allahabad High Court, which noted that the complainant and several independent witnesses had turned hostile. Furthermore, the High Court highlighted that a tape recorder used to record the demand was never seized or produced by the investigating agency. The State approached the Supreme Court after the High Court set aside the convictions and acquitted the respondents.

The primary question before the court was whether an adverse inference can be drawn under Section 114 of the Evidence Act when the prosecution fails to produce electronic evidence mentioned in the complaint. The court also examined whether mere recovery of tainted money, in the absence of substantive proof of demand, is sufficient to sustain a conviction under the Prevention of Corruption Act (P.C. Act).

Proof Of Demand Is Sine Qua Non For Conviction Under PC Act

The Supreme Court reiterated the well-settled legal position that the demand for bribe money is an "indispensable essentiality" for a conviction under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act. The bench noted that the High Court was justified in observing that mere recovery of tainted money, divorced from the circumstances of a proven demand, cannot be the sole basis for a conviction.

The bench relied on several precedents, including B. Jayaraj v. State of A.P. and P. Satyanarayana Murthy v. District Inspector of Police, to emphasize that the proof of demand is the gravamen of the offence. In the present case, the court found that the evidence regarding the demand was doubtful and unreliable, particularly since the material witnesses did not support the prosecution's version.

Adverse Inference For Withholding Electronic Evidence

A critical aspect of the judgment was the prosecution's failure to produce the tape-recorded conversation of the alleged bribe demand. The court noted that the complainant had explicitly stated that a tape recorder was used to record the meeting on January 10, 1995. However, this recording was never adduced as evidence, nor was it seized by the investigating agency during the probe.

The court held that this omission amounted to the withholding of the "best evidence" by the prosecution. Invoking Section 114 Illustration (g) of the Evidence Act, the bench observed that if the prosecution is in possession of evidence and fails to produce it, the court is fit to draw an adverse inference that such evidence, if produced, would have been unfavourable to the prosecution's case.

"The prosecution in possession of the best evidence, CCTV footage (or tape recordings) ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 Illustration (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced."

Meeting Of Minds Essential For Charge Of Criminal Conspiracy

The bench further addressed the charge of criminal conspiracy under Section 120-B of the IPC. It observed that the prosecution failed to show a "meeting of minds" or a prior agreement between the respondents and the principal accused, R.K. Srivastava. The court highlighted a logical flaw in the prosecution's case: while the inspectors were charged with conspiracy, the alleged chief conspirator, R.K. Srivastava, was not charged under Section 120-B IPC.

Citing State (NCT of Delhi) v. Navjot Sandhu, the court remarked that conspiracy is seldom an open affair and must be inferred from conduct and circumstances. However, suspicion cannot take the place of legal proof. The bench found that the prosecution produced no substantive evidence indicating a concert between the respondents and the principal accused beyond their mere presence at the official premises.

Scope Of Interference Against Orders Of Acquittal

The Supreme Court also highlighted the limited scope of interference in appeals against acquittal under Article 136 of the Constitution. Referring to Chandrappa v. State of Karnataka, the bench noted that if two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the lower court.

The bench concluded that the High Court had meticulously reappreciated the evidence and assigned cogent reasons for extending the benefit of doubt to the respondents. Since the findings of the High Court were neither perverse nor contrary to law, the Supreme Court found no ground to interfere with the order of acquittal.

The Supreme Court dismissed the criminal appeals, affirming that the prosecution failed to establish the essential ingredients of demand, acceptance, and conspiracy beyond reasonable doubt. The judgment reinforces the mandate that investigating agencies must produce all material evidence, especially electronic recordings, to substantiate charges of corruption, or risk an adverse judicial inference.

Date of Decision: May 27, 2026