R. Jagadeswara Reddy, vs The State Of A.P.,
2021 Latest Caselaw 5600 AP

     THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR


               Criminal Appeal No.1581 of 2007

JUDGMENT :

1. Assailing the conviction and sentence in C.C.No.9 of

2003, dated 15.11.2007, by the Additional Special Judge for

SPE and ACB Cases, City Civil Court, Hyderabad, wherein

the appellant was convicted under Section 7 and Section

13(1)(d) read with Section 13(2) of Prevention of Corruption

Act, 1988 and sentenced to suffer Rigorous Imprisonment for

one year and to pay a fine of Rs.2,000/- under each count,

the present appeal is filed under Section 374 Cr.P.C.

2. The substance of the charge against the accused officer

is that, while he was working as Prohibition & Excise

Inspector, Penukonda, demanded and accepted a sum of

Rs.5,000/- from Chintala Jayachandra on 27.4.2002, as

illegal gratification, other than legal remuneration, for doing a

favour of not booking any case and conduct raids on his

shop.

3. The facts in issue are as under :

Since the principal witness i.e., P.W.1 did not support

the prosecution case, certain facts, as mentioned in the

charge-sheet, are required to be mentioned for understanding

the prosecution case. P.W.1 was working as a salesman at

Yaswanth Wines, Somandepalli, Penukonda, Anantapur

District. The licence for the said wine shop was in the name

of one Mallikarjuna (P.W.5), but the business was transacted

by one Ramakanth Reddy (P.W.4). The accused officer was

working as Inspector, Prohibition & Excise, Penukonda, at

the relevant point of time. On 25.4.2002, the accused officer

is alleged to have gone to the wine shop and demanded a

sum of Rs.5,000/- as illegal gratification from P.W.1, for

doing a favour of not booking cases against the wine shop.

He was informed that if amount is not paid, he will conduct

raids on the shop and book cases leading to cancellation of

licence. It is said that the complainant (P.W.1) expressed his

inability to pay such huge bribe as business was not good

and also as the owner was away from the village. But,

however, the accused officer insisted on payment of bribe of

Rs.5,000/-. Further, the accused officer is alleged to have

demanded P.W.1 to come to his house by the evening of

27.4.2002 with the bribe amount. As P.W.1 was not willing

to pay any bribe, he proceeded to the office of Dy.S.P., A.C.B.,

Anantapur and preferred a oral complaint on 26.4.2002 at

3.00 PM. The same was reduced into writing by the

Inspector of Police, A.C.B., Anantapur (P.W.13). The contents

were read over to the complainant, who admitted it to be

true. Ex.P17 is the said statement. After receiving the

complaint, P.W.6 asked P.W.1 to come to A.C.B. office on

27.4.2002 at 4.00 PM along with the proposed bribe amount

of Rs.5,000/-. Meanwhile, the antecedents of the accused

officer and the genuineness of the complaint were verified.

After obtaining permission, P.W.6 registered a case in crime

No.3/ACB-ATP/2002 under Section 7 of the Act and issued

F.I.R., which is placed on record as Ex.P18. On the next day

at 4.00 PM, P.W.1 is said to have appeared before P.W.6, by

which time he secured the presence of P.W.2 and one

Sankarappa to act as mediators. The pre-trap proceedings

were conducted in his office between 4.30 PM and 6.45 PM.

During the said proceedings, P.W.1 was introduced to the

mediators and they were asked to enquire about the contents

of the complaint. Thereafter, P.W.1 produced Rs.5,000/-,

consisting of two (2) five hundred rupee notes and thirty one

(31) hundred rupee notes and eighteen (18) fifty rupee notes.

One of the mediators noted down the serial numbers of the

notes in the first mediators' report, which is placed on record

as Ex.P6. Thereafter, demonstration about the

phenolphthalein test was conducted and the significance of

the same was explained to P.W.1. P.W.6 instructed one

Police Constable to apply phenolphthalein power on the bribe

amount and thereafter the amount was kept in left side shirt

pocket of P.W.1, with a caution that he has to remove the

notes from his pocket only on demand made by the accused

officer and not otherwise. He was also asked to come out and

give a signal by wiping his face with lungi in a bending

position on acceptance of money by the accused officer. After

completing the pre-trap proceedings and taking the

precaution that the hands of the trap party members do not

have any traces of phenolphthalein powder, the entire trap

party, including P.W.1, left the A.C.B. Office at 7.00 PM in a

Government vehicle, and reached Penukonda at 9.00 PM.

The vehicles were stopped at Satalingeswara Alayam. P.W.1

and one P.C. were asked to get down from the jeep and

proceed towards the residence of the accused. Except P.W.1

all others took vantage positions. P.W.1 was further

instructed that he has to pay the money only on demand and

not otherwise.

4. It is alleged in the charge-sheet that on 27.4.2002 at

about 9.00 PM when P.W.1 met the accused officer at his

residence at Penukonda, the accused officer reiterated his

earlier demand and accepted the bribe amount of Rs.5,000/-.

On receipt of the signal from P.W.1, the trap party, including

P.W.2, rushed to the house of the accused officer and noticed

P.W.1 in front of the house of the Inspector. He was asked to

stay there until he was called. They also noticed the accused

officer sitting on a sofa with lungi and a towel on the

shoulder. The Dy.S.P. introduced himself to the accused

officer and also introduced P.W.2 to the accused officer.

P.W.6 instructed accused officer to keep the hands apart and

then got prepared two fresh sodium carbonate solutions in

two glass tumblers and directed the accused officer to rinse

his right and left hand fingers separately in both the

solutions, which turned pink in colour. M.Os.3 and 4 are

resultant solutions. When Dy.S.P. asked the accused officer

about the money received, he led P.W.2 and Dy.S.P. to an

adjacent room, picked up his pant, which was to an anchor

and took out a bunch of currency notes from the right side

pocket. The numbers of the notes were verified, which tallied

with those mentioned in the pre-trap panchanama. M.O.5 is

the seized currency notes. The explanation offered by the

accused officer was incorporated in the proceedings. The

inner lining of the right side pant pocket of the accused

officer, when rinsed in sodium carbonate solution, also

turned pink in colour. M.O.6 is the sealed bottle containing

the resultant solution. M.O.7 is the pant from which the

currency notes were recovered. Thereafter, the complainant -

P.W.1 was called inside and he was asked to explain as to

what happened after he left the trap party and before he gave

signal. His statement was incorporated in the post-trap

panchanama, which is placed on record as Ex.P8. P.W.6 also

examined one, Vijayalakshmi, who is wife of accused officer

and also one, Smt.Bharathi, who is wife of K.V.Subba Reddy.

Their version was also incorporated in Ex.P8. The Dy.S.P.

also prepared an observation of the scene and a rough sketch

of the scene. At this stage, it is to be noted that the entire

pre-trap and post-trap proceedings were conducted under the

supervision of P.W.13, the Inspector of Police. Later, he took

over the investigation from P.W.6 and examined

P.Adinarayana Reddy and one S.Ramakantha Reddy (P.W.4)

and recorded their statements. He also examined P.W.5 and

recorded his statement on 5.6.2002. P.W.14, the

Sub-Divisional Police Officer took over further investigation.

He verified the investigation done and after obtaining

sanction order vide G.O.Ms.No.133, dated 1.2.2003, filed

charge sheet, which was taken on file as C.C.No.9 of 2003 by

the Additional Special Judge for SPE and ACB Cases-cum-

V Additional Chief Judge, City Civil Court, Hyderabad.

On appearance of the accused, copies of the documents were

furnished and thereafter, charges, as referred to above, came

to be framed, read over and explained to the accused, to

which he pleaded not guilty and claimed to be tried.

5. The plea of the accused is one of denial. In support of

its case, the prosecution examined P.Ws.1 to 14 and got

marked Exs.P1 to P28. Out of 14 witnesses examined by the

prosecution, P.Ws.1, 4, 5, 7, 8, 9, 10, 11, 12 did not support

the prosecution case and they were treated hostile by the

prosecution. After completing the prosecution evidence, the

accused was examined under Section 313 Cr.P.C. with

reference to the incriminating circumstances appearing

against him in the evidence of the prosecution witnesses, to

which he denied. In support of his case, he examined D.Ws.1

to 4 and got marked Ex.D1 and also got marked Exs.X1 and

X2. Believing the evidence of the prosecution, namely, that

the accused officer has accepted the money for doing an

official favour, the trial Court convicted the accused as stated

supra. Challenging the same, the present appeal came to be

filed.

6. Sri M.B.Thimma Reddy, learned counsel for the

appellant, would submit that there is absolutely no legal

evidence available on record to connect the accused with the

crime. According to him, the prosecution failed to prove the

theory of demand and acceptance of money as bribe.

He further pleads that there is any amount of doubt with

regard to the presence of the accused officer in Penukonda on

the date of acceptance of the money, as the General Diary

and Tour Diary (Exs.P25 and P26) clearly indicate that the

accused officer left Penukonda at 8.20 AM and returned at

9.30 PM. Such being so, it is urged that, the presence of the

accused in the house at that time is doubtful. He would

further contend that a perusal of Ex.X2 would show that

some other persons were present at the time of trap, which

fact is admitted by the Investigating Officer in his evidence

and that they would have been best persons to speak as to

what happened on that day. He further submits that there is

no evidence on record to show whether there was any official

favour pending. According to him, the amount alleged to

have been demanded for not booking any cases is difficult to

believe. He also took us through the evidence of P.Ws.1, 2, 3

and 4 to show that this amount, which was recovered from

the accused officer's pant pocket, was repayment of hand

loan.

7. He would further contend that, after receiving a

complaint from P.W.1, no verification of the antecedents of

P.W.1 was done. This fact assumes importance as the First

Information Report, which was dispatched on 27.4.2002,

reached the Court on 29.4.2002. He would further submit

that since P.W.1 did not support the prosecution case, the

theory of demand and acceptance remained unproved and

once the demand is not proved, mere acceptance of

money/recovery of money, even if believed, does not by itself

amount to acceptance of money as illegal gratification.

Learned counsel for the appellant placed reliance on number

of decisions, which I will discuss later.

8. On the other hand, Sri S.M.Subhani, learned Standing

Counsel for A.C.B., appearing for the respondent-State,

would contend that merely because P.W.1 did not support

the prosecution case, the same does not by itself mean that

there was no acceptance of money as illegal gratification,

more so, when P.W.1 admits his signature on Ex.P1. To the

plea that there was no favour, which the accused officer

could have extended to P.W.1, he would submit that the

evidence of P.W.1 indicates the accused officer visited the

shop of P.W.1 and verified the books. Such being the

position, the version of the prosecution that P.W.1 demanded

the amount for not booking any cases cannot be said to be

false. Sri S.M.Subhani, learned Standing Counsel for A.C.B.,

would further contend that if really the amount paid was

repayment of any loan, there was no necessity for P.W.1 to

take Dy.S.P. and trap party along with him. He could as well

gone all alone to Penukonda to repay the money. In view of

the judgments of the Apex court in N. Narsinga Rao vs.

State of Andhra Pradesh1 and other judgments which will

be referred to and discussed later, the counsel would contend

that the conviction awarded by the trial court requires no

interference.

9. Now, the point that arises for consideration is, whether

the prosecution was able to bring home the guilt of the

accused for the offences punishable under Sections 7 and

13(1)(d) read with Section 13(2) of Prevention of Corruption

Act, 1988 beyond reasonable doubt?

2001 CrlLJ 515

10. In order to appreciate the rival arguments it would be

necessary to refer to the evidence available on record and the

judgments of the Apex Court in that regard. It is well

established principle of law that in order to prove the offences

punishable under Sections 7 and 13 of the Prevention of

Corruption Act, the prosecution has to prove demand and

acceptance of money and existence of an official favour for

accepting the money.

11. As per the case of the prosecution, the accused officer

is said to have demanded the money on 25.4.2002, but

strangely charge-sheet is silent as to when the accused

officer demanded money on 25.4.2002. Even report given by

P.W.1 is silent as to the time when the accused officer

demanded the amount of Rs.5,000/- from P.W.1. The "time

of demand" assumes significance for the reason that the case

of the appellant is that he was not in office on that day,

which is sought to be established through the evidence of

P.Ws.7 to 12 and Ex.X1, which I will discuss later.

12. In order to prove the theory of demand, the prosecution

mainly relied upon the evidence of P.W.1, P.W.6 and the

mediators. P.W.1 was working as a salesman in

M/s.Yaswanth Wines, Somandepalli, since seven years. The

license to the said shop was in the name of Mallikarjuna

(P.W.5). Adinarayana Reddy (not examined) was also a

salesman in the said wine shop. P.W.5 is said to have

executed Noukarnama in the name of P.W.1 and

Adinarayana Reddy. According to him, on 25.4.2002, he was

present in the wine shop and no body came to the wine shop

and did anything. Though he does not remember the date

but states that excise official Inspector visited their wine

shop, inspected the account books and left. He denies giving

a complaint to the A.C.B., Anantapur, but states that original

statement shown to him belongs to him and it bears his

signature. ExP1 is the signature. According to him, he

signed the complaint on the instructions of Adinarayana

Reddy and other salesman in the wine shop. He further

states that on asking of Adinarayana Reddy he went to the

office of A.C.B., Anantapur along with him. He also says that

Adinarayana Reddy gave money of Rs.5,000/- stating that it

was given by one Ramakantha Reddy asking him to pay the

amount to accused officer, which he owes to accused officer's

father-in-law. At that stage, the witness was declared hostile.

13. There is no other evidence available on record with

regard to the demand by the accused officer on 25.4.2002.

In the cross-examination by the learned Public Prosecutor it

was suggested to him that on 25.4.2002 the accused officer

inspected the wine shop and demanded payment of

Rs.5,000/- as bribe, failing which he will book cases and see

that the license is cancelled, but the same was denied by

him. To a suggestion that he represented to the Investigating

Officer that the owner is not available and that the business

was not running well for payment of the bribe amount was

also denied by him. He also denied the suggestion that

accused officer asked him to come to his house in the

evening of 27.4.2002 to pay the demanded amount. He also

denied the suggestion that he was not willing to pay the bribe

amount to accused officer and that he went to Dy.S.P., A.C.B.

office and lodged a report. He also denied that his statement

was recorded by the Inspector in the office of A.C.B., read

over to him and only then he signed. He denies the entire

proceedings which took place on 27.4.2002. He denied the

suggestion that the version given by him in chief examination

that it was Adinarayana Reddy who took him to A.C.B. office

and that he has given the amount of Rs.5,000/- to him to be

paid to accused officer towards repayment of hand loan by

Ramakantha Reddy to his father-in-law as false. However, he

admits that on 27.4.2002 they all started in a Government

vehicle from the A.C.B. Office, Anantapur to go to Penukonda

and reached Penukonda at 9.00 PM. However, he denies the

suggestion with regard to the accused reiterating his demand

on seeing P.W.1 and the receipt of money by accused officer

with his right hand, changed it to left hand, took the amount

into his right hand again and then kept in the right side

pant's pocket, but, however, admits that he gave the amount

to accused officer to give it to father-in-law Konda Reddy, but

the accused officer did not receive it. He then pleaded with

accused officer to receive the money as it was already

9.00 PM. Only then, accused officer received it. At that time

three persons were present. After paying the amount, P.W.1

claims to have left that place, but, however, denied the

suggestion of giving a pre-arranged signal.

14. To a suggestion namely, "when you said that the

amount was given to you by Adinarayana Reddy to be paid to

the accused officer towards the repayment of loan

Ramakantha Reddy owes to the father-in-law of the A.O.,

where was the necessity for you and can you explain why you

have gone along the DSP and other officials in their jeep from

Anantapur to the A.O's house at Penukonda", P.W.1

answered that, "Because he went along with Adinarayana

Reddy to the DSP, ACB's Office at Anantapur and there he

was requested to go along with the DSP and his party who is

known to him, he went along with them to Penukonda to the

house of the A.O." In the cross-examination by the counsel

for the accused he reiterates his version that accused officer

never visited the shop casually and whenever he visited, he

inspected the records and made endorsements. He further

admits that accused officer seized the non-duty paid liquor

being transported from Karnataka State belonging to the

brother-in-law of Adinarayana Reddy, by name, Narasimha

Reddy and in that matter Adinarayana Reddy went to the

excise office and accused officer asked him to get away and

over that matter there were differences between them. He

further states that there were three persons present in the

house of the accused officer. Among them, Anjan Reddy and

Venugopal are Ex.V.D.Os. and Sivaiah is a Hotel Proprietor.

When he went to the house of the accused officer, he asked

him the purpose of his visit and he told him that

Ramakantha Reddy sent him to hand over an amount which

he owes to Konda Reddy, his father-in-law. Though the

accused officer refused to receive the amount, P.W.1 insisted

for receipt of the money stating that it is already 9.00 PM and

that he will miss the bus and on that accused officer is said

to have received the amount.

15. This, in substance, is the evidence of P.W.1 with regard

to the demand and acceptance. As stated earlier, he resiled

from his earlier statement and as such, there is no material

to show that there was demand on 25.4.2002.

16. Counsel for the respondent would submit that the fact

that there was demand can be inferred from the contents of

the First Information Report, since P.W.1 did not dispute his

signature on the complaint and the evidence of mediator,

who deposed about reading out the contents of the report to

P.W.1 wherein he admitted the contents to be true.

17. It is a well established fact that merely because P.W.1

admitted his signature on a complaint and even if he says

that original complaint shown to him belongs to him, but

unless the contents of the complaint are spoken to in Court,

the same has no evidentiary value. It is well established

principle of law that contents of the first report can only be

used to contradict/corroborate the maker and nothing more

than that. But, however, Sri S.M.Subhani, learned Standing

Counsel for ACB, would contend that in view of presumption

under Section 20 of the Prevention of Corruption Act and

having regard to the law laid down by the Apex Court in the

judgments relied upon by him, pleads that an inference can

be drawn that there was a demand.

18. Sri M.B.Thimma Reddy, learned counsel for the

appellant, relied upon the judgments of the Apex Court in

Sejappa v. State2; B.Jayaraj v. State of Andhra

Pradesh3; N.Sunkanna v. State of Andhra Pradesh4;

Krishan Chander v. State of Delhi5; C.M.Girish Babu v.

C.B.I.6; Mukhtiar Singh (since deceased) through His

Legal Representative v. State of Punjab7 and

AIR 2016 SC 2045

2014 (2) ALD 73 SC

AIR 2015 SCW 6764

AIR 2016 SC 298

AIR 2009 SC 2022

(2017) 8 Supreme Court Cases 136

P. Satyanarayana Murthy v. District Inspector of Police

and Anr.8, in support of his plea.

19. Sri S.M.Subhani, learned counsel for ACB, relied upon

the two judgments delivered recently by this Hon'ble Court

and the judgments of the Apex Court in M.Narasinga Rao v.

State of Andhra Pradesh9; The State, rep. by C.B.I. v. G.

Prem Raj 10 and T.Sankar Prasad v. State of Andhra

Pradesh 11 to show that mere recovery of the money and

hands turning positive to phenolphthalein test would amply

establish the receipt of money is pursuant to demand. In

fact, Sri S.M.Subhani mainly relied upon the judgment of the

Apex Court in M.Narasinga Rao's case (supra) in support of

his plea.

20. Before dealing with the said aspect, it is to be noted

that the issue as to whether demand has to be proved when

the money is recovered from the accused and when the

hands turned positive to phenolphthalein test was referred to

a larger bench by the Apex Court in Neeraj Dutta v. State

(Government of NCT of Delhi)12. But, since the issue is still

pending, we intend to discuss the law laid down by the Apex

Court in the judgments referred to above.

(2015) 10 SCC 152

(2001) 1 Supreme Court Cases 691

(2010) 1 SCC 398

2004 3 SCC 753

(2019) 14 SCC 311

21. The judgment in M.Narasinga Rao's case (supra) was

by a Bench of Three Judges, wherein the Hon'ble Apex Court

held that a presumption under Sub-Section (1) of Section 20

of Prevention of Corruption Act can be drawn when tainted

currency notes were recovered from the accused officer and

in the absence of any explanation for the same. But,

subsequently, in two more Three Judge Benches judgments,

it was opined that presumption under Section 20 cannot be

drawn unless the prosecution proves demand of bribe.

22. Before dealing with the said judgments it is to be noted,

as stated earlier, P.W.1 did not anywhere depose about the

demand of money by the accused officer. He even did not

speak to the contents of the report, except stating that it

bears his signature. He gives an explanation as to

circumstances under which he signed his signature which

indicate that he was not even aware about the contents of the

same, since it was signed at the instance of one Adinarayana

Reddy, who was salesman in the wine shop and with whom

the accused officer had some grievance. P.W.13,

Investigating Officer, in his evidence categorically admits

that, neither himself nor the D.S.P., A.C.B., obtained any

endorsement from P.W.1 in token of having read over the

contents of Ex.P1 to him and he admitted the same to be

true. His evidence also shows that this F.I.R. was received by

the Court after the trap was over. Therefore, the argument of

the learned counsel that this F.I.R. came to be introduced at

a belated stage at the instance of others and that P.W.1 was

not aware of the contents, except his signature, cannot be

brushed aside, having regard to all the circumstances

referred to earlier.

23. In B.Jayaraj v. State of A.P.13 a three Judge bench of

the Apex Court dealt with the similar issue where P.W.2, the

complainant therein, did not support the prosecution case

and he disowned making the complaint and on the other

hand stated in his deposition that the amount of Rs.250/-

was paid by him to the accused with a request that the same

may be deposited in the bank for fee for renewal of his

licence, hence, he was declared hostile. The panch witness

was examined as P.W.1 after being summoned by K.Narsinga

Rao on 13.11.1995. The contents of the complaint filed by

P.W.2 were explained to him in the presence of the

complainant, who acknowledges the fact that the accused-

appellant had demanded Rs.250/- as illegal gratification for

release of previous items. It is on the aforesaid basis that the

liability of the appellant for commission of the offences

alleged was held to be proved, notwithstanding the fact that

in his evidence the complainant not supported the

prosecution case. The trial court, as well as High Court,

relied upon Section 20 of the Prevention of Corruption Act to

2014 (2) ALD (Crl.) 73 (SC)

draw a legal presumption as regards the motive or reward for

doing or forbearing to do any official act after finding

acceptance of illegal gratification by the accused-appellant.

Referring to the judgments in C.M.Sharma v. State of A.P.

14 and C.M. Girish Babu v. C.B.I.15 the three Judge Bench in

B.Jayaraj's case held that demand of illegal gratification is

sine qua non to constitute the said offence under Section 7

and mere recovery of money cannot constitute an offence

under the said section, unless it is proved beyond all

reasonable doubt that the amount was accepted as bribe.

The Court went on to hold that presumption under Section

20 can be drawn only in respect of offences under Section 7

and not for the offence under Section 13(1)(d)(i)(ii) of the Act,

since it is only on proof of acceptance of illegal gratification

that presumption can be drawn under Section 20 of the Act

that such gratification was received for doing or forbearing to

do any official act. Proof of acceptance of illegal gratification

can follow only if there is proof of demand. Since the same is

lacking, the Court held that no presumption can be drawn

and accordingly set aside the conviction under both counts.

24. Later on, in N.Sunkanna v. State of Andhra

Pradesh16 the two Judge Bench, after referring to the

judgment of the Apex Court, acquitted the accused where

(2010) 15 SCC 1

(2009) 3 SCC 779

2016 (1) ALD (Crl.) 230 (SC)

complainant disowned his complaint and turned hostile. The

court went on to hold that mere possession and recovery of

the currency notes from the accused without proof of demand

will not constitute an offence under Section 7 and no

presumption can be drawn.

25. Similarly, in Krishan Chander v. State of Delhi17, the

Apex Court, after referring to State of Kerala and Others v.

C.P. Rao's case (supra); B.Jayaraj's case (supra);

A. Subair v. State of Kerala18; P.Satyanarayana

Murthy's case (supra); V.K. Mishra v. State of

Uttarakhand19; Satvir Singh v. State of Delhi 20 held that

in the absence of any material to show that it was the

appellant who demanded bribe money from the complainant

and as the complainant turned hostile, thereby prosecution

failed to prove demand and acceptance by the appellant,

which is sine qua non for constituting an offence under

Sections 7 and 13(1)(d) read with Section 13(2) of the P.C.

Act, acquitted the accused.

26. Similarly, in Mukhtiar Singh's case (supra) the Apex

Court, after referring to the judgments of P.Satyanarayana

Murthy's case (supra); B.Jayaraj's case (supra);

A. Subair's case (supra); State of Kerala and Others v.

AIR 2016 SC 298

(2009) 6 SCC 587

(2015) 9 SCC 588

(2014) 13 SCC 143

C.P. Rao's case (supra) categorically held that mere recovery

by itself is not sufficient unless the demand is proved. It was

a case where, though the complainant did not turn hostile,

but the answers elicited in the cross-examination show that

he was not able to mention the date on which the demand

was made. He denied suggestion that there was neither

demand for illegal gratification by the accused nor any sum

was accepted by him. It was also a case where shadow

witness-P.W.2 supported the prosecution case with regard to

the acceptance of money. But, however, there was

discrepancy as to whether he and P.W.1 met the accused and

also the place where the card board box was lying on the

table of the accused. In the circumstances where the

demand and acceptance of illegal gratification seems to be

unusual, more particularly with regard to the location of the

transaction, the Court held that the same cannot be made

the basis to convict the accused.

27. In view of the above, the two judgments of this Court,

relied upon by Sri S.M.Subhani, learned standing counsel for

the ACB, may not come to his rescue.

28. From the evidence adduced by the prosecution it is to

be noted that even in the instant case, as observed earlier,

P.W.1 never spoke about any demand and though he says in

chief that he did not give any complaint to A.C.B.,

Anantapur, he deposed that the original complaint shown to

him belongs to him and it bears his signature, but, in the

very next sentence he gives a go bye to the said version

stating that on the asking of Adinarayana Reddy he went to

the office of the A.C.B., Anantapur and thereafter at the

instance of Adinarayana Reddy he signed on the complaint.

He was not made to speak to the contents of the report. The

suggestions given to the witness by the learned Public

Prosecutor in the cross-examination with regard to the

contents of the report, more particularly the accused

demanding bribe, were denied by him. Though the case of

the prosecution, as per the charge-sheet, is that accused

demanded bribe on 25.4.2002, but, there is no reference to

the demand on 25.4.2002. As seen from the record, all the

suggestions given were denied. This fact situation squarely

falls with the facts in B.Jayaraj's case (supra) and it can be

said that the prosecution failed to prove the demand.

29. At this stage, learned Public Prosecutor would contend

that since the evidence of P.W.1 would show that the Excise

Inspector visited the shop on 25.4.2002, a presumption can

be drawn that there was demand on 25.4.2002, but, P.W.1,

in his evidence, only deposed that he was present in the wine

shop on 25.4.2002 and no body came to the wine shop and

did anything. In the next sentence he categorically states

that he does not remember the date, but excise Inspector Sri

Jagadiswar Reddy visited the wine shop. He further says that

he visited the wine shop, inspected the books and left.

A reading of the said sentences does not indicate that the

accused officer visited the shop on 25.4.2002. This part of

the evidence does not show that there was any demand for

money on that day.

30. At this stage, one other issue, which requires to be

noted, is that, the accused has placed on record the evidence

of P.Ws.7 to 12, coupled with Ex.X1 and Exs.P25 and P26 to

show that the accused was not in Penukonda on 25.4.2002.

P.Ws.7 to 12 are the residents of the villages of Roddam

Mandal, who were examined by the prosecution to show that

no meeting was held on 22.4.2002 or on 25.4.2002 with

regard to the propaganda made by the Excise Inspector

relating to non-consumption of I.D. liquor. All these

witnesses did not support the prosecution case and were

treated hostile. On the other hand, they categorically

deposed about holding of meeting in the village by the

accused officer on 25.4.2002. At this stage, it is to be noted

that Ex.X1 is a letter written by the accused officer to the

Prohibition & Excise Superintendent, Anantapur, dated

25.4.2002. Of course, that was dispatched little later, but

the contents of the letter indicate that on 25.4.2002 at about

5.30 he along with his staff proceeded to Kambalapalli Village

of Roddam Mandal to discuss about the prevention of illicit

distilled liquor and arrack with the elder people of the village.

The entries in the diary dated 25.4.2002 show accused along

with the staff left the police station and raided the villages

mentioned in column and met the Sarpanches and mediators

requesting them to participate in Grama Sabha to discuss

the evils of consuming I.D. liquor and also took oath from the

people of Kambalapalli that they should not allow

transportation of I.D. liquor and arrack into their village. It

also speaks about reaching Penukonda at 9.30 PM.

31. Though Sri S.M.Subhani tried to contend that this

document is brought into existence after the trap, but, it is to

be noted that this document contains entries dated

26.4.2002 and 27.4.2002 and also subsequent dates.

Therefore, definitely the same could not have been brought

into existence at a later point of time. Further, such a

suggestion never came forward from the prosecution, namely

that this document was prepared to suit the prosecution

case. In fact, Exs.P25 and 26 the two documents produced

by the prosecution, namely, general diary and tour diary

indicate that the accused was on tour on that day i.e., he left

at 8.20 AM and returned at 9.30 PM. Further, it is to be

noted that though prosecution themselves filed memo, for

examining 19 villagers, but, for the reasons best known, they

examined only 6 witnesses and none of them supported the

case of the prosecution. The two diaries coupled with the

evidence of Investigating officer indicate that the accused

officer was not in the headquarters on that day. Therefore,

the case of the prosecution that the accused made a demand

on 25.4.2002 by visiting the wine shop appears to be

suspicious.

32. Coming to the acceptance of money, the evidence of

P.W.1 is that Ramakantha Reddy gave an amount of

Rs.5,000/- to him through Adinarayana Reddy so as to give

the same to accused officer, which he owes to accused

officer's father-in-law. In order to repay the said amount,

P.W.1 claims to have gone to the house of the accused and

thereafter paid the amount to him.

33. P.W.2, the mediator, in his evidence deposed that on

receipt of signal from the constable, by name, Sreeramulu

(not examined), they rushed into the house of the Inspector

and noticed P.W.1 in front of the house of the Inspector,

while the accused was sitting on a sofa in a lungi with a towel

on his shoulder. After introduction, the hands of the accused

officer were subjected to phenolphthalein test, which turned

into pink colour. When questioned as to where he kept the

amount, the accused officer led them to adjacent room,

picked up his pants on the hanger and took out a bunch of

currency notes from the right side pants' pocket. Thereafter,

mediators verified and tallied the numbers of the notes

written in panchanama. The wife of the accused officer and

also one, Smt.Bharathi, wife of K.V.Subba Reddy, who were

present in the house, were also examined, but they stated

that they have not witnessed anything as they were inside the

kitchen room. Suggestions given to P.W.2 that the money

was never accepted as bribe and that the explanation given

by the accused officer was not recorded in the panchanama

were denied by him. However, he admits that at the time of

search, there were some other persons present with the

accused officer.

34. The evidence of the Investigating Officer also shows that

at the time of the alleged trap there were two V.D.Os.,

namely, Anjan Reddy and Venugopal and Hotel Proprietor, by

name, Shivaiah, which is evident from the evidence of

P.W.13, the Investigating Officer, who, in the cross-

examination, admits presence of these three persons in the

house of accused officer on the date of trap.

35. Though the Investigating Officer admitted that he has

not examined any of these three persons, but, they were

examined as D.Ws.1 and 2, wherein both of them

categorically deposed that P.W.1 told that P.W.4 has sent the

money to be given to Konda Reddy, father-in-law of accused

officer. At that time, accused officer is said to have stated

that Konda Reddy was not available in the house as he went

into the town and asked P.W.1 to wait. Then, P.W.1

requested the accused officer to take the money and hand

over the same to his father-in-law, for which, accused officer

asked him to wait for sometime, so that he may personally

give it to Konda Reddy. After few minutes, P.W.1 requested

the accused officer to take the money and give it to his

father-in-law, as the bus to his village might go away. So

saying, P.W.1 gave a wad of currency notes stating that it is

Rs.5,000/-, requesting him to hand over the same to his

father-in-law. The accused officer took the said amount,

went into the room, came back and sat on the cot.

Thereafter, two persons came to the house of accused officer,

caught hold of both hands and conducted tests. His evidence

also shows that when D.S.P. questioned the accused officer,

he stated he did not demand or accept any bribe from P.W.1

and he also requested D.S.P. to verify the facts from D.Ws.1

and 2. It is said that D.Ws.1 and 2 informed D.S.P. all the

facts, but, however, their statements were not incorporated in

the panchanama. The purpose for which D.W.1 was at the

house is evident from Ex.D1, the Marriage Invitation Card

given by him to Konda Reddy. Though D.Ws.1 and 2 were

asked to wait, but, the Investigating Officer did not record

their statements. However, in the cross-examination he

denies the suggestion that he did not see P.W.1 handing over

cash to accused officer. To a suggestion that what all he

deposed in chief in favour of accused officer is false, was

denied by him. He also denied a suggestion that he did not

go to the house of the accused along with Sivaiah and Anjan

Reddy on 27.4.2002 at 9.00 PM.

36. Similar is the version of D.W.2, who is also a Village

Development Officer. All the suggestions given in cross-

examination were denied by him. In fact, both D.Ws.1 and 2

were acting as elders for settlement of marriage of the

brother-in-law of the accused officer, which was settled at

Peddireddypalli, Hamlet of Vedidakala, Penukonda Taluk,

Anantapur District.

37. At this stage, it will be appropriate to refer to the

evidence of P.W.4, since it was at his instance P.W.1 claims

to have gone to the house of the accused officer for

repayment of the hand loan. P.W.4, in his evidence in chief,

states that the father-in-law of accused officer by name

Konda Reddy is friend of his father, who was a M.L.A. for

Penukonda from the year 1972 to 1982. After the death of

his father, he used to go to Konda Reddy for financial

assistance. According to him, two months prior to this case,

he obtained a hand loan of Rs.10,000/- from Konda Reddy.

According to him, son of Konda Reddy, who married a woman

against the wishes of his father, telephoned him whether he

can adjust any amount to him from the loan of Rs.10,000/-

he borrowed from Konda Reddy. According to him, on

25.4.2002, he received an urgent call from Hyderabad and he

started at 12.00 noon on a vehicle and at that time, he

remembered about the phone call of Konda Reddy's son and

he went to the shop of his brother-in-law expecting to send

the amount through him. The salesman present there

informed him his brother has gone for lunch. Then, he called

Adinarayana Reddy and gave him Rs.5,000/- to be handed

over to Konda Reddy, who will be coming to the house of his

son-in-law, the Circle Inspector. At that point of time, this

witness was declared hostile. The suggestions given by the

Public Prosecutor with regard to the money taken and the

reason for repayment of the money were all denied by him.

The said Konda Reddy was examined as D.W.4, who toes in

line with the case of the accused, but one fact, which stands

established from the evidence of all the witnesses, is that,

money was paid to the accused by P.W.1 in the presence of

D.Ws.1 and 2 in the house of accused officer.

38. But, the prosecution failed to prove beyond reasonable

doubt as to whether the money recovered was payment of

illegal gratification, or whether it was a return of the hand

loan. It is no doubt true that it may not be necessary for

P.W.1 to go along with A.C.B. officials to the house of

accused officer to pay the amount, but, at the same time, no

evidence has been adduced by the prosecution as to whether

there was any demand of money on 25.4.2002.

39. As held by the Apex Court in Sejappa's case (supra)

initial burden of proving that the accused accepted or

obtained the amount as other than legal remuneration is

upon the prosecution. It is only when the initial burden

regarding demand and acceptance of illegal gratification is

successfully discharged by the prosecution, the burden of

proving the defence shifts upon the accused and a

presumption would arise under Section 20 of the Prevention

of Corruption Act. In Suraj Mal v. State (Delhi

Administration)21 the Apex Court took the view that mere

recovery of tainted money divorced from the circumstances

under which it is paid is not sufficient to convict the accused

when the substantive evidence in the case is not reliable.

40. In State of Kerala and Others v. C.P. Rao 22 it was

held that mere recovery of the tainted money is not sufficient

to convict the accused and there has to be corroboration to

the testimony of the complainant regarding the demand of

bribe. Further, in Mukut Bihari and Others v. State of

Rajasthan 23 the Apex Court categorically held in para 8 as

under :

AIR 1979 SC 1408

2011 (6) SCC 450

AIR 2012 SC 2270

"8. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised Under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act, 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."

41. Therefore, mere recovery of money, even assuming that

there was no proper explanation by the accused, does not

lead to an inference or a presumption that it was paid as

illegal gratification, more so, when there is any amount of

doubt with regard to his presence in Penukonda on

25.4.2002 and demanded money as bribe.

42. Further, the explanation of the accused officer, namely,

that a false case has been foisted and that he never

demanded any money nor accepted any money as illegal

gratification, came to be made by way of representation on

30.4.2020 to Deputy Commissioner of Prohibition & Excise,

Anantapur, which is placed on record as Ex.X2. In order to

substantiate veracity of Ex.X2 it is required to be noted that

immediately after the trap, accused was arrested and later

released on bail and on 30.4.2002, he submitted a written

representation to the Deputy Commissioner of Anantapur,

which was handed over to D.W.3 by the accused officer, who

have endorsed on the said representation to the effect as 'for

kind perusal of D.C.' He admits that Ex.X2 is the said

representation filed by the accused officer. According to

D.W.3, the Deputy Commissioner gave oral instruction to

him to send a copy of the said Ex.X1 to D.S.P., Anantapur

and accordingly they did so.

43. One other aspect, which requires consideration at this

stage, is whether there was any official favour pending with

the accused officer. The case of the prosecution as per the

charge-sheet is that the accused demanded money for not

booking case against Yaswanth Wines and if his demand was

not met, he will raid the shop and lodge a complaint and get

the licence of the shop cancelled. But, no evidence has been

produced by the prosecution, either through P.W.1 or

through the evidence of Investigating Officer about the

pendency of any cases against the said wine shop. It appears

not even a single case was registered against the said shop.

44. Having regard to all the above findings and as the

demand or acceptance of money as illegal gratification is not

proved, I am of the opinion that the prosecution has failed to

establish the guilt of the accused beyond all reasonable

doubt.

45. In the result, the Criminal Appeal is allowed and the

conviction and sentence imposed against the appellant -

accused, for the offences punishable under Sections 7 and

13(1)(d) read with Section 13(2) of Prevention of Corruption

Act in C.C. No.9 of 2003 on the file of the Additional Special

Judge for SPE & ACB Cases, City Civil Court, Hyderabad, by

judgment dated 15.11.2007, are set aside. The appellant -

accused is acquitted and he shall be set at liberty forthwith,

if he is not required in any other case. Fine amount paid, if

any, shall be refunded to appellant - accused.

Consequently, miscellaneous petitions, if any, pending

shall stand closed.

______________________________ JUSTICE C.PRAVEEN KUMAR

Date : 31.12.2020

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