Andhra Pradesh High Court - Amravati

Akurathi Yellamanda, vs The State Acb, on 19 February, 2021

Bench: C.Praveen Kumar

       THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR


               Criminal Appeal No. 1441 of 2006


JUDGMENT:

1) The sole accused in C.C. No. 3 of 2002 on the file of the

Special Judge for SPE and ACB Cases, Vijayawada, is the

Appellant herein. He was tried for the offences punishable under

Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of

Corruption Act, 1988, and sentenced to undergo Rigorous

Imprisonment for a period of one year and to pay a fine of

Rs.2,500/-, in default, to suffer Simple Imprisonment for three

months each under each count. The sentence of imprisonment

imposed under each count was directed to run concurrently.

M.O.1, M.O.2 and M.Os. 4 to 6 were directed to be destroyed

after the expiry of appeal time.

2) The substance of the Charges against Accused Officer is

that, while working as Mandal Revenue Inspector, Kollipara

Mandal, Guntur District, he is said to have demanded

Rs.1,000/- as bribe prior to 27.11.2000 and accepted the same

as gratification other than legal remuneration for issuance of

Property Valuation Certificate to the wife of one Somaraju

Narayana Rao.

3) The facts, as culled out from the evidence of the

prosecution witnesses, are as under:

i. PW2 was working as Senior Assistant in the Office of

Mandal Revenue Office, Kollipara Mandal, during the year 2000.

PW6 who was running a Fair Price Shop at Attota Village,

submitted Ex.P1 application before Mandal Revenue Officer,

Kollipara Mandal, for issuance of Property Valuation Certificate

in favour of PW4's wife, who is none other than his sister-in-law.

His enquires later revealed that the application was forwarded to

Accused Officer. About two or three days later, he met the

Accused Officer in his Office and enquired about the issuance of

certificate. PW6 was informed that, he has to observe certain

formalities i.e., to pay Rs.1,000/- or Rs.2,000/- as bribe to the

Accused Officer. PW6 informed the same to PW4.

ii. PW4 in his evidence states that, his wife is having land

admeasuring Ac.3.35 Cents at Attota Village of Kollipara Mandal

and, as such, he approached PW1 along with necessary

application form. PW1 is said to have forwarded the application,

dated 16.11.2000, to Mandal Revenue Office, who valued the

property at Rs.1,00,000/- per acre. On coming to know from

PW6 that Accused Officer asked PW4 to meet him, PW4 met

Accused Officer on 27.11.2000 in his Office and requested him

to issue valuation certificate in the name of his wife. At that

point of time, the Accused Officer is said to have reiterated his

earlier demand for issuance of certificate. PW4 expressed his

inability to pay the amount as he is an employee, but, the

Accused Officer reiterated the demand saying that work will be

done only if the demanded bribe amount of Rs.1,000/- is paid.

Reluctantly, P.W.4 agreed to pay the amount, but, however,

presented a report before Deputy Superintendent of Police, ACB,

Vijayawada, on 29.11.2000. Ex.P9 is the said report.

iii. PW9 - Deputy Superintendent of Police, ACB, Vijayawada,

on receipt of Ex.P9 report from PW4, endorsed the same to PW8

to cause discreet enquiries about the antecedents of PW4 and

Accused Officer and to submit his report. On 30.11.2000, PW9

received report from PW8 by way of an endorsement on Ex.P9

[report], basing on which, he registered a case in Crime

No.25/ACB-VJA/2000 and submitted the original First

Information Report to Court. Ex.P19 is the original First

Information Report. Prior to the same, PW9 obtained permission

from D.G., A.C.B., Vijayawada, to lay the trap. Requisition for

mediators was given to C.T.O., Governorpet, Vijayawada, and

accordingly, PW7 and another attended the Office of PW9 on

30.11.2000. On arrival of PW4, he was introduced to the

mediators and vice versa and a copy of the complaint was given

to the mediators to ascertain the genuineness of the same from

PW4. The mediators enquired with PW4 and after being satisfied

with the contents therein, PW9 requested PW4 to produce the

proposed bribe amount, which he intends to offer to Accused

Officer. Accordingly, PW4 produced Rs.1,000/- consisting of ten

Rs.100/- notes.

iv. On instructions, the mediators noted the serial number of

the notes in the pre-trap proceedings. Thereafter, the Constable

was asked to prepare sodium carbonate solution in a glass

tumbler and rinse his hand fingers in such solution. On doing

so, the solution remained colourless. On instructions of PW9,

the Constable applied phenolphthalein powder to currency

notes, made them into a wad and kept them in the left side

upper shirt pocket of PW4. PW4 was instructed not to touch the

currency notes till they were handed over to the Accused Officer

on demand. The significance of the phenolphthalein test was

explained to PW4 and mediators. PW4 was also instructed to

give a signal by wiping his face with handkerchief when the

amount is received by the Accused Officer. Ex.P15 is the pre-

trap proceedings.

v. After completing the formalities, the entire trap party left to

the Office of the Accused Officer in two cars and reached the

vicinity of the Accused's Office at 12.30 noon. The vehicles were

stopped at a distance. PW4 was again instructed to part with the

money only on demand made by the Accused Officer and to relay

the signal on receipt of the money. At about 1.05 p.m., PW4

came out of the Office of the Accused Officer and relayed the

pre-arranged signal. On receipt of the same, PW9 along with

other trap party members including the mediators, rushed to the

Office of the Accused Officer. They found the Accused Officer

sitting on a chair in front of the table in the varandah. The

identity of the trap party members were disclosed and after

ascertaining his identity, he was asked not to rub his hands and

thereafter one of the Constables prepared sodium carbonate

solution in two separate glass tumblers and requested the

Accused Officer to rinse his hand fingers and on doing so, the

solution turned pink in colour. When questioned about the

amount, which he received from PW4, the Accused Officer

showed a bound book, a diary and pulled out a wad of currency

notes from the pages. On comparing the numbers of the

currency notes, the same tallied with those mentioned in

Ex.P15. The version given by the Accused Officer, as to how the

money came into his pocket, was recorded in the post-trap

proceedings, which are placed on record as Ex.P18.

vi. The file relating to PW4 was produced by Accused Officer

and the same was seized for further investigation along with

Ex.P11 Attendance Register. Thereafter, PW4 was called into the

Office of the Accused Officer and was asked to narrate as to

what happened between him and the Accused Officer prior to

arrival of the trap party. His version is also recorded in the

mediators report.

vii. PW9 prepared a rough sketch of the scene, which is placed

on record as Ex.P17. He arrested the Accused Officer and later

released him on bail. PW9 made a request for recording Section

164 Cr.P.C. statement of PW4 apart from recording the

statements of PW1 to PW4 and PW6. Further, investigation in

this case was taken by PW8, who after obtaining the copy of the

Section 164 Cr.P.C. of PW4, filed charge sheet, which was taken

on file as C.C. No. 3 of 2002.

4) On appearance of the Accused Officer, copies of the

documents, as required under Section 207 Cr.P.C., were

furnished and later on charges as referred to above came to be

framed, read over and explained to the Accused Officer, to which

he pleaded not guilty and claim to be tried.

5) In support of its case, the prosecution examined PW1 to

PW9 and got marked Ex.P1 to Ex.P19, apart from marking

Ex.X1 to Ex.X8 and M.O.1 to M.O.6. After completing the

prosecution evidence, the Accused Officer was examined under

Section 313 Cr.P.C. with reference to the incriminating

circumstances appearing against him in the evidence of

prosecution witnesses, to which he denied. The Accused Officer

examined DW1 and DW2 and got marked Ex.D1 in support of

his plea. Out of nine witnesses examined by the prosecution,

PW2 and PW3 did not support prosecution case and they were

treated hostile by the prosecution.

6) Believing the evidence of PW4, PW6, PW7 and PW9 coupled

with Ex.P18, the trial Court convicted the Accused Officer.

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

7) Sri. M. Naga Raghu, learned counsel for the Appellant

mainly submits that, the entire case has to be thrown out in the

absence of preliminary enquiry being conducted by the

investigating agency, prior to registration of the crime. He

further submits that the sanction order issued by the authority

for initiating proceedings against the Accused Officer is not

valid. Apart from that, he would submit that there is any

amount of doubt with regard to demand made by the Accused

Officer, since the evidence of PW4 is silent as to when he

approached the Accused Officer. It is his plea that the evidence

of PW6 and PW4 is inconsistent with regard to lodging of Ex.P1

application vis-a-vis the evidence of PW1. According to him,

there is material on record to show that Accused Officer was not

in office on that day, which is evident through Ex.P11. The

counsel also took me through 164 Cr.P.C., statement of PW1 to

show that there are number of contradictions in the said

statement, throwing any amount of doubt on the prosecution

case. He further pleads that persons who were present at the

time when the phenolphthalein test is being demonstrated

should not have been members of the raid party. In other words,

his plea appears to be that there is no material to show that the

members of the trap party, more particularly, those who

demonstrated the significance of phenolphthalein test, washed

their hands before proceeding to the office of the Accused

Officer. He further pleads that without registering a crime, he

has sent a requisition to C.T.O's Office, which would mean that

the investigating agency proceeded in a pre-determined manner

to somehow foist a case against the Accused Officer. He relied

upon the Judgments State through Inspector v.

K.Narasimhachary1; Krishan Chander v. State of Delhi2;

State of Kerala & Anr. v. C.P. Rao3; Mukhtiar Singh (since

deceased) through his L.R. v. State of Punjab4; Dashrath

Singh Chauhan v. Central Bureau of Investigation5.

8) On the other hand, Sri. S.M. Subhani, learned Counsel for

A.C.B., would submit that Range Inspector-I, A.C.B., Vijayawada

Range, conducted preliminary enquiry and submitted a report

on 29.11.2000 at 8.00 a.m., basing on which, a crime was

registered. In view of the above, he would submit that, it is not

open for the Accused Officer to complain that there was no

preliminary enquiry. His plea is that, there cannot be open

enquiry, since an open enquiry would make the Accused Officer

vigilant and take all precautions. So, in case of this nature,

normally enquiries are conducted confidentially.

9) Coming to the issue relating to sanction, Sri. S.M.

Subhani, would contend that a reading of the order granting

sanction would clearly indicate that there was an application of

mind and all the material placed was considered before giving

sanction. Referring to the evidence of PW4, PW6 and PW1, he

would submit that there is enough material on record to show

that the Accused Officer was present in the Office. According to

him, the evidence of DW2 itself would indicate that, though, the

Accused Officer was on OD, he attended the office.

(2005) AIR SCW 6275

(2016) AIR SC 298

(2011) 6 SCC 450

2017(7)SCJ 432

2019(1) SCJ 151

10) Insofar as the plea that the members who demonstrated

the phenolphthalein test should not be part of the raid party, he

would contend that PC1171, who has demonstrated the

phenolphthalein test to the mediators and PW4 was asked to

stay back and he never accompanied the trap party. Therefore,

no prejudice is caused to the Accused Officer. He further took

me through the evidence to show that there was a favour

pending before the Accused Officer and that the said amount

came to be demanded for issuance of valuation certificate.

11) Insofar as acceptance of money is concerned, he would

contend that when the test conducted to both hands of the

Accused Officer, yielded positive, and in view of the demand

made, it stands established that the money was accepted as

illegal gratification other than the legal remuneration. Having

regard to the above, he would submit that the judgment of the

learned Special Judge requires no interference.

12) The point that arises for consideration is, whether the prosecution was able to bring home the guilt of A.O. beyond reasonable doubt for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988?

I. Is the Accused Officer a Public Servant?

13) The fact that the Accused Officer is a Public Servant is not

in dispute. According to prosecution, he was working as Mandal

Revenue Inspector in Mandal Revenue Officer's Office, Kollipara

Mandal, Guntur District as on 30.11.2000.

II. Is there a valid sanction to prosecute Accused Officer?

14) As stated earlier, the main argument of the learned

counsel for the Appellant is that, there was total non-application

of mind while awarding sanction. On the other hand, the case of

the prosecution is that the sanction issued by the Government

to prosecute the Accused Officer is valid. In support of the same,

the prosecution relied upon the evidence of PW5, who was

working as Assistant Secretary in Agriculture Co-operation

Department, A.P. Secretariat, Hyderabad and Ex.P13 - G.O.Ms.

No. 629, dated 22.09.2001, of Revenue (Vigilance-II)

Department, ordering prosecution.

15) This court in A.P. CBI, SPE, Hyderabad v.

P.Muthuraman6 held as under:-

"If the sanction order is a speaking order, then the matter ends there. Otherwise, evidence should be adduced to prove that the sanctioning authority had perused the material before according sanction, which may not be in a particular form."

16) Keeping in view the judgment of this court, I shall now

proceed to deal with the issue as to whether there was a valid

sanction.

17) A reading of Ex.P13, dated 22.09.2001, would show that

PW4 - S. Narayana Rao approached the Village Administrative

Officer, Attota, at the first instance on 19.11.2000 with an

application for issuance of property valuation certificate for the

1996 Crl. Law Journal, 3638

land standing in the name of his wife, so as to secure loan from

the bank, to meet the educational expenses of their daughter,

who was studying 2nd year B.Tech course. The sanction order

shows that the said application was forwarded to M.R.O., for

issuance of the certificate, who made an endorsement on it and

referred the same to Mandal Revenue Inspector to verify and put

up to him with his report. Basing on the statement of PW4, it

has been stated that, as he is an employee in Guntur, he

requested his brother PW6 to pursue the mater and accordingly,

PW6 when met the Accused Officer, is alleged to have demanded

money for doing the need. The sanction order refers to the

manner in which the incident in question took place, apart from

referring to the mediator report, gist of statement of witnesses,

copy of the FIR etc.

18) PW5 in his evidence submits that draft final report was

received on 17.01.2000 through Vigilance Commissioner along

with gist of witness statements, FIR and mediator report. After

considering the material on record, the Assistant Section Officer

put up a office note and placed before PW5 for approval. After

his approval, the file was moved to the Officer on Special Duty,

Secretary and thereafter to the concerned Minister, who

approved the file, after considering the material available on

record. Then, the Principal Secretary to Government issued

proceedings according sanction against Accused Officer.

Though, PW5 was cross-examined at length, nothing useful

came to be elicited to discredit his testimony. On the other hand,

it has been elicited that the documents considered were noted in

Ex.P13. Therefore, the argument of the learned counsel for the

Appellant that there was total non-application of mind while

granting sanction may not be correct

III. Whether there was any preliminary enquiry before registering

the crime?

19) Sri. Subhani, learned counsel appearing for A.C.B., would

submit that, after receiving the report, PW8 was directed to

cause verification of the antecedents of Accused Officer and

PW4, and only after receipt of report, the case was registered. It

is to be noted there that the enquiry caused should be discreet

and confidential and no amount of suspicion should be created

either to the Accused Officer or to PW4. In other words, his plea

appears to be that, there cannot be an open enquiry, since, if it

is done, the Accused Officer would become vigilant.

20) As seen from the record, PW9 received the report on

29.11.2000 at 8.00 a.m., while he was present in his Office.

Immediately, he endorsed the same to PW8, to cause discreet

enquiries about the antecedents of PW4 and Accused Officer and

to submit a report. The evidence of PW8 show that, on receipt of

the instructions, he caused enquiries and submitted his report

to Deputy Superintendent of Police by way of an endorsement on

Ex.P9 -report, which was on 30.11.2000. Pursuant to the

endorsement made, the crime was registered. In the cross-

examination, PW8 admits that the endorsement on Ex.P9 does

not disclose that he received Ex.P9 at 8.00 a.m. He further

admits that, except his endorsement on Ex.P9 there is no other

evidence recorded evidencing his discreet enquiries. Further, to

a suggestion that he did not conduct any discreet enquiries

against Accused Officer and that the endorsement on Ex.P9 is a

table endorsement was denied by him.

21) In view of the above, Sri. M. Nagu Raghu, learned Counsel

for the Appellant would contend that, there was no preliminary

enquiry or discreet enquiry as required before registering a

crime.

22) It may be true that the endorsement may not contain the

names of the persons he has enquired. As stated earlier, the

enquiry to be done, cannot be an open enquiry, since, such open

enquiry would definitely give a clue to the Accused Officer and

make him vigilant. Therefore, merely because the endorsement

does not disclose the source information, the discreet enquiry so

conducted, cannot be found fault with.

IV. Whether there was any demand of bribe amount; acceptance

of bribe as illegal gratification other than legal remuneration, and

also whether there was any official favour pending before the

Accused Officer?

23) In order to bring home a charge under Section 7, the

prosecution has to prove that the Accused Officer accepted

illegal gratification, which was not the remuneration for which

he was legally entitled to, and that he has accepted the same as

motive for doing an official act.

24) Insofar as offence under Section 13(1)(d) read with 13(2) of

the Act is concerned, the prosecution has to prove that the

Accused Officer by corrupt or illegal means obtained for himself

a valuable thing or pecuniary advantage and that he has

committed criminal misconduct being a public servant.

25) In order to appreciate the same, it would be useful to first

refer to the evidence of PW4, at whose instance the law was set

into motion.

26) The evidence of PW4 would show that he was working as

Telephone Supervisor, Dachepalli and that PW6 is his elder

brother. In order to obtain loan from Indian Overseas Bank, for

education of his daughter, he has to submit a property valuation

certificate. As he was not having any property of his own, he

wanted to obtain valuation certificate of the property, which is in

the name of his wife. (Ac.3.35 cents of agricultural land at Attota

of Kollipara Mandal). He is said to have approached PW1 along

with necessary application forms [Ex.P1 to Ex.P3], who

forwarded the same to M.R.O., by making necessary entries

thereon. Ex.P1 is the application form, which is dated,

16.11.2000. According to him, PW6 also approached the M.R.O.,

who asked him to meet the Accused Officer and that PW6 met

the Accused Officer and enquired about the property valuation

certificate. Further PW4 was informed by PW6 that he met the

Accused Officer, who demanded bribe of Rs.1,000/-. On

27.11.2000 PW4 met the Accused Officer in his office and

requested him to issue the certificate in the name of his wife,

wherein, Accused Officer reiterated the earlier demand of

Rs.1,000/-. As PW4 was not willing to pay the bribe amount and

as the Accused Officer refused to do the needful until money is

paid, he lodged a report with A.C.B., Vijayawada. Ex.P9 is the

said report.

27) Before dealing with the cross-examination of PW4, it is to

be noted here that 164 Cr.P.C. statement of PW4 was recorded,

which is placed on record as Ex.P10. Though, it is not a

substantive piece of evidence, but, the same can be used to

contradict the maker. In the 164 Cr.P.C. statement, it has been

stated that PW4 sent his brother for the purpose of obtaining

valuation certificate, as it was not possible for him to go every

time. His brother met the M.R.O. twice or thrice, who told him

that the said certificate is not yet prepared. The M.R.O. asked

his brother to meet the Revenue Inspector [Accused Officer]. The

Revenue Inspector is said to have told PW6 [brother of PW4] that

M.R.O. is demanding Rs.1,000/-. Subsequently, PW4 went to

the office of the M.R.O., met the Revenue Inspector and informed

him that he has no capacity to pay Rs.1,000/-. But, the Revenue

Inspector informed that the amount of Rs.1,000/- has to be

paid. As he was not willing to pay the amount, a complaint came

to be lodged.

28) In the cross-examination of PW4, when the contents of 164

Cr.P.C. statement were put to him, he admitted that, he

approached the M.R.I. and gave bribe amount of Rs.1,000/- to

him and asked him for preparation of Property Valuation

Certificate. He also stated that Accused Officer prepared a

certificate and gave it to him. It was further admitted by him,

when confronted with 164 Cr.P.C. statement, that, Accused

Officer received the amount and kept the amount underneath a

book. He further admits that his 161 Cr.P.C. statement does not

disclose the Accused Officer taking the file to the room of M.R.O.

for his signature. He further admits that the Deputy

Superintendent of Police has not seized the original of Ex.P2 i.e.,

Property Valuation Certificate from PW4.

29) This version of PW4 has to be tested with the evidence of

PW6 and other witnesses to show as to whether the Accused

Officer was present in office i.e., on 27.11.2000, i.e., the date of

demand.

30) PW6, as stated earlier, is none other than the brother of

PW4. He in his evidence-in-chief deposed that, he has submitted

Ex.P1-application before M.R.O., Kollipara Mandal, for issuance

of Property Valuation Certificate in favour of the wife of PW4.

According to him, he has submitted Ex.P1 either in the month of

October or November, 2000. On enquiry with M.R.O., he was

informed that Ex.P1 was forwarded to Accused Officer for

enquiry and report. Two or three days thereafter, he met the

Accused Officer in M.R.O's Office and on enquiry, he was

informed that he has to observe some formalities i.e., has to pay

one or two thousand rupees as "mamools". He informed the

same to PW4 and 10 days thereafter, himself and PW4 met the

Accused Officer in the Office and enquired about the Property

Valuation Certificate. Accused Officer reiterated the demand of

Rs.1,000/- or Rs.2,000/- for processing the valuation certificate.

PW4 agreed to pay the amount for issuance of valuation

certificate.

31) On the date of trap i.e., 30.11.2000, PW6 claims to have

visited to the Office of M.R.O., along with PW4. Both of them met

Accused Officer in his office and enquired about the certificate.

Then, the Accused Officer asked them as to whether the bribe

amount was brought, for which, they gave affirmative reply, and

that an amount of Rs.1,000/- was paid by PW4 to Accused

Officer. Accused Officer received the same and gave the original

of Ex.P2. In the cross-examination, he admits that, he did not

state before the Deputy Superintendent of Police that he met

M.R.O. two days after presenting Ex.P1, and that the Accused

Officer demanded Rs.1,000/- or Rs.2,000/- to observe

formalities, and that himself and his brother met the Accused

Officer within 10 days after presenting Ex.P1-application, and at

that time Accused Officer demanded Rs.1,000/-. It would be

useful to extract the same, as under:

"It is true that, I did not state before the Deputy Superintendent of Police that I met M.R.O. two days after

presenting Ex.P1, and that Accused Officer demanded Rs.1,000/- or Rs.2,000/- to observe formalities, and that myself and my brother met the Accused Officer within 10 days after presenting Ex.P1-application, and at that time Accused Officer demanded Rs.1,000/."

32) PW6 further admits that, he did not state before the

Deputy Superintendent of Police as in Ex.D1 that his brother

submitted Ex.P1 to M.R.O. It would be useful to extract the

same, as under:

"I did not state before the Deputy Superintendent of Police as in Ex.D1 that my brother Narayana Rao submitted Ex.P1 to M.R.O."

33) A reading of the evidence of these two witnesses would

show variations, with regard to they meeting the Accused

Officer. While the evidence of PW6 is to the effect that, after

informing PW4 about the demand made, 10 days thereafter,

both of them met the Accused Officer in the M.R.O. Office and

enquired about the certificate, wherein, he demanded payment

of Rs.1,000/- or Rs.2,000/- for processing and issuance of

certificate, and that PW4 agreed to pay Rs.1,000/-, but, the

version of PW4 nowhere indicate that he along with PW6 met the

Accused Officer seeking issuance of valuation certificate,

wherein, he demanded Rs.1,000/- or Rs.2,000/- for processing

and issuance of valuation certificate. The version of PW4 in-chief

appears to be quite contra. According to him, he entrusted the

work of pursuing the valuation certificate to his brother [PW6].

But, however, he claims to have met the Accused Officer in his

office on 27.11.2000, on which date, the Accused Officer

reiterated the earlier demand of Rs.1,000/-.

34) Two things are required to be noted here i.e., there was a

demand prior to 27.11.2000; and second demand was on

27.11.2000. Insofar as first demand i.e., prior to 27.11.2000 is

concerned, the version of PW6 falsifies the version of PW4. As

stated earlier, their evidence is mutually inconsistent. For the

purpose of repetition, it can be said that, while the evidence of

PW6 is to the effect that, himself and PW4 met the Accused

Officer, wherein, he demanded bribe of Rs.1,000/- or Rs.2,000/-

for processing valuation certificate, the same is silent in the

evidence of PW4.

35) Coming to the demand on 27.11.2000, the learned counsel

for the Appellant mainly submits that, there is enough material

on record to show that the Accused Officer was not present in

the Office on 27.11.2000. Sri. Subhani, learned counsel for

A.C.B., submits that merely because the Accused Officer was 'on

other duty', does not by itself mean that he has not visited the

Office on that day and met PW4.

36) Before proceeding further, one fact, which is required to be

noted here, is the evidence of PW4 being silent as to the time

when he met the Accused Officer on 27.11.2000. Be that as it

may, the issue is, whether the Accused Officer was present in

the Office on that day? Though a suggestion was given to PW4

that, on 27.11.2000, Accused was 'on duty' and that he was not

in office on that day; but, subsequently, a suggestion came to be

made, which was admitted that prior to the trap date, PW4 met

the Accused Officer on 27.11.2000. But, the evidence of PW7 -

mediator shows that, the Deputy Superintendent of Police seized

Ex.P11 -Attendance Register from the Office of Accused Officer,

which was attested by him, other mediator and the Deputy

Superintendent of Police. The version of M.R.O. and the Attender

were also incorporated in the Mahazar. In the cross-examination

of PW7, it has been elicited that, by the side of Accused Officer

seat, they found Senior Assistant/PW2 sitting in a chair. It was

also elicited that except Accused Officer and PW2, none were

present when they rushed to Accused Officer. It is appropriate to

extract the said admissions, as under:

"It is true that by the side of Accused Officer seat we found the Senior Assistant/PW2 was sitting in a chair. It is true that except Accused Officer and PW2, none were present when we rushed to Accused Officer."

37) PW7 further admits that, when he verified the entries in

Ex.P12, it would show that Accused Officer signed against date

24th and it was noted as 'OD' on 25th. He further states that,

there was no initial of Accused Officer from 27th to 29th of

November 2000. The Deputy Superintendent of Police is said to

have enquired with Accused Officer about the entries of OD in

Ex.P12 and he admits that he does not know whether the same

were incorporated in Ex.P18 i.e., post-trap panchanama. He

further admits that, he is not aware as to whether Deputy

Superintendent of Police enquired the M.R.O. or PW2 about the

entries in Ex.P12. The relevant admissions in the cross-

examination of PW7, is as under:

"I verified the entries in Ex.P12 so also Dy.S.P. Ex.P12 shows that the Accused Officer signed on dated: 24th and it was noted as 'OD' on 25th. It is true that there was no initial of Accused Officer from 27th to 29th of November 2000. The Deputy Superintendent of Police enquired the Accused Officer about the entries of OD in Ex.P12. I do not remember whether the same was incorporated in Ex.P18. I do not remember whether Deputy Superintendent of Police enquired either M.R.O., or PW2 about the entries in Ex.P12."

38) The evidence of PW7 also discloses that Deputy

Superintendent of Police has not seized the original of Ex.P2

from PW4 in his presence. According to him, PW4 did not state

that PW6 accompanied him when he went to the office room of

Accused Officer, and that PW7 categorically deposed that he did

not notice PW6 at the Office of the Accused Officer. The further

admissions in the cross-examination of PW7, is as under:

"It is true that PW4 did not state during the course of his version that anybody including PW6 accompanied him when he went to the office room of A.O. I did not notice PW6 at the office of A.O."

39) From the evidence of mediator -PW7, it is clear that the

attendance register, which was there in the office, came to be

seized at the time of trap and there is no initial of the Accused

Officer from 27th to 29th November 2000. PW7 categorically

admits that he is not aware as to whether any enquiry was made

from PW2, who was sitting next to Accused Officer and also with

the M.R.O. of that office about the entries in the attendance

40) At this stage, it very much essential to refer to the evidence

of PW9- investigating officer. His evidence is to the effect that,

Ex.P11 - attendance register discloses that Accused Officer did

not put his initial in token of attendance in his office on 27th to

29th as they were kept blank. It further shows that Accused

Officer was 'on duty' in all the days of the month except on 24th.

He further admits that he did not make any investigation about

the presence of Accused Officer from 27th to 29th. He further

admits that he has not recorded the evidence, evidencing the

attendance of Accused Officer to the office on 27th and that

Ex.P18 does not disclose the presence of PW6 at the time of trap

in the office of the Accused Officer. The admission in the cross-

examination of the investigating officer, are as under:

"Ex.P12 attendance register disclosed that A.O., did not put his initial in token of his attendance in the office on 27th to 29th are kept it blank. It further shows that A.O. was on O.D. in all the days of the month except 24th. Witness adds 27th to 29th are kept blank. I did not make any investigation about the presence of the A.O. from 27th to 29th.

I have not recorded evidence evidencing that A.O. was attended to the office on 27th. Ex.P18 does not disclose that I found PW6 during the trap proceedings in the office of the A.O."

41) Therefore, the evidence adduced makes it very clear that

no evidence has been collected to show that Accused Officer was

present in office on 27.11.2000. PW2, who was examined, did

not support the prosecution case and he was treated hostile by

the prosecution. On the other hand, PW2 was made to speak

about the incident, which took place on 30.11.2000, which he

did not support.

42) At this stage, the evidence of DW2, who was working as

M.R.I. of Kallipara Mandal along with Accused Officer, would be

of some importance. According to him, he worked as M.R.I.,

along with Accused Officer and Ex.P12 is the attendance sheet

for the month of November 2000, which goes to show that

Accused Officer was on 'on duty' for the entire month and that

he was also on duty along with Accused Officer during those

days. Ex.P12 further shows that Accused Officer was on 'on

duty' upto 25.11.2000. The date column of 27th to 29th was kept

blank. He further states that from 27th to 29th, both of them

were on 'on duty' at Vallabhapuram Village and distributed rice

and kerosene coupons at Vallabhapuram Village. Their

signatures were found place in Ex.X4, Ex.X6 and Ex.X8, which

are Entry Nos. 15, 17 and 23 of the relevant register indicating

their presence in Vallabhapuram Village from 9.00 a.m. to 7.00

p.m. But in cross-examination of the learned Public Prosecutor,

he admits as under:

"Our office Superintendent used to note if we were on O.D. in the attendance register. I cannot say the reason as to why for the remaining dates it was not mentioned that we are on O.D. Though we were on O.D., we used to attend the office in case of necessity. Though we attended the office on some days there may be no evidence evidencing the same. It is not true to

suggest that the A.O. was not with me on 27.11.2000 and that subsequent to the trap in order to facilitate A.O. I got obtained his signature in Ex.X4, Ex.X6 and Ex.X8 in order to help him. It is not true to suggest that A.O. attended the office on 27.11.2000. It is not true to suggest that A.O. was present along with me from 9.00 a.m. to 7.00 p.m. at Vallabhapuram on 27.11.2000.

There are no written instructions issued to me and A.O., to attend Vallabhapuram on 27.11.2000."

43) Though the evidence of this witness, by itself, cannot be

made the basis to show that the Accused Officer was not in

office on 27.11.2000, but, however, the prosecution has not

made any effort to independently establish that he was present

in the office on 27.11.2000. On the other hand, the investigating

officer himself admits that he did not make any investigation

about the presence of Accused Officer from 27th to 29th. In view

of the evidence of PW4 and PW6, which is mutually inconsistent

with each other and other circumstances referred earlier, a

doubt arises as to whether really the Accused Officer was

present in the office on 27.11.2000. When once his presence is

doubtful, as a necessary corollary the demand made on that day

also has to be viewed with suspicion.

44) Coming to the theory of acceptance. I may have to refer to

the evidence of PW4 and PW6 once again. While the evidence of

PW6 is to the effect that, on 30.11.2000, he went to the office of

M.R.O. along with PW4 and met the Accused Officer, who

demanded as to whether the said amount was brought and

when he replied in affirmative, asked them to give the said

amount; pursuant thereto, PW4 gave cash of Rs.1,000/- to

Accused Officer, who upon receiving the same, gave original of

Ex.P2; further, PW6 claims to have been present (a) when police

caught the Accused Officer and (b) when sodium carbonate

solution was applied to both hand fingers of Accused Officer, the

same proved positive and also (c) when the amount was

recovered from Accused Officer. However, a totally contrary

version is given by PW4. His evidence with regard to trap shows

that, after giving a complaint, the pre-trap formalities were

prepared and thereafter, at about 11.00 a.m. himself and trap

party proceeded in two cars and reached the headquarters of

Kollipara mandal at 11.30 noon. The vehicles were stopped in

the vicinity of the office of Accused Officer. Deputy

Superintendent of Police instructed PW4 to proceed to the office

of Accused Officer by reiterating his earlier instructions with

regard to demand, acceptance and relay of signal. Accordingly,

PW4 proceeded to the office of Accused Officer. He found the

Accused Officer working at his seat. He approached him and

enquired him about the property valuation certificate to be

issued in the name of his wife and on that, the Accused Officer

asked him whether he has brought the demanded bribe amount.

PW4 replied positively and when he was about to give the

money, Accused Officer asked him to wait, thereupon, he took

the file and went to the office room of M.R.O. and came back

with the file. According to him, the Accused Officer went to the

office room of M.R.O. only to obtain signatures in the valuation

certificate. Again the Accused Officer demanded PW4 the bribe

amount, upon which PW4 gave the amount, which was received

by Accused Officer with his right hand, counted the same and

kept it in the diary, which was in front of the table. Thereafter,

he gave the property certificate in the name of his wife. Then,

PW4 came out and gave a pre-arranged signal to the members of

the trap party.

45) A comparison of the evidence of PW6 and PW4 would show

that, though, PW6 claims to have gone and met Accused Officer

along with PW4 on 30.11.2000, but, the evidence of PW4 is

totally silent about the presence of PW6 in the office of Accused

Officer on 30.11.2000. There is no whisper about him in his

evidence. Further, the evidence of PW6 is silent about the act of

Accused Officer not taking the money initially though

demanded; taking file into the office of M.R.O., for his signature

and thereafter, making the demand for payment of money.

46) On the other hand, the evidence of PW6 is to the effect

that, PW4 gave cash of Rs.1,000/- to Accused Officer, who

received the same and gave the original of Ex.P2. While the

evidence of PW4 is to the effect that after receipt of bribe

amount, the Accused Officer counted the same and kept in a

diary, which was found in front of the table. Apart from all these

things, it is also to be noted that, there is variation in the

evidence of these two witnesses with regard to the quantum of

amount demanded on meetings prior to 27.11.2000. If really the

amount was paid as demanded, and that it was kept by the

Accused Officer in his diary, there was no reason for this

contradiction in the evidence of these two witnesses. As PW6

was not declared hostile by the prosecution, his evidence-in-

chief remained unimpeached by the prosecution and when the

said evidence is totally inconsistent with the evidence of PW4, I

am of the view that it may not be safe to act on the evidence of

these two witnesses.

47) Further, in the cross-examination of PW4, it has been

elicited that, though, Accused Officer is said to have given the

original valuation certificate to PW4 immediately after receipt of

the bribe amount, the same was not seized. No explanation is

forthcoming as to why the said certificate was not seized. In my

view, the same would have established the link in the case.

Further, the version now set-out by PW4 that, when he wanted

to pay the amount to the Accused Officer, he denied the same

and went into the room of M.R.O. to obtain the signature, was

not stated either before the Magistrate when his 164 Cr.P.C.

statement was recorded or before the Deputy Superintendent

during the course of investigation.

48) The case of the Accused Officer is that, money was kept in

the book without his knowledge and while leaving he shook his

hands, because of which the phenolphthalein test proved

positive. But, of course, no concrete evidence has been placed

on record to show that Accused Officer shook hands with PW4

when he left the office. But, the fact remains that there is

variation in the evidence of PW6 and PW4 also with regard to the

recovery of money. While the evidence of PW4 show that

Accused Officer after accepting the money, kept it in his diary,

which is in-front of the table, but, the evidence of PW6 is silent

on the said aspect. On the other hand, his evidence goes to show

that he received the money and thereafter gave the certificate.

Things would have been different had PW6 was treated hostile

by the prosecution and subjected him to cross-examination.

PW2 who was examined to speak about these transactions did

not support prosecution, and PW7-mediator, and the

investigating officer entered the office after receiving signal from

PW4, but, they did not notice PW6 in the office room, nor

anywhere nearby. Therefore, a doubt lingers in the mind of the

court that all is not well with the way in which the prosecution

has adduced evidence in this case.

49) Though the trial court observed that, since the version of

PW4 was recorded in post-trap panchanama i.e., Ex.P18 and

copy of the same furnished to the Accused Officer immediately,

and as no effort was made to object to the contents by making a

representation to the higher authorities, felt that the incident in

question can be believed. But, one should imagine the position

of the Accused Officer after the trap. He would have been in

shatters and may not even know the contents of the post-trap

panchanama that was prepared. In-fact, nowhere in the

evidence of the witnesses it has been categorically stated that

the copy of the post-trap panchanama was furnished to the

Accused Officer immediately.

50) The Trial Court relied upon the evidence of PW7, PW9,

Ex.P9 -earliest report and Ex.P10 -164 Cr.P.C. statement to

believe that there was a demand prior to and on 27.11.2000 and

also demand and acceptance on 30.11.2000. It would be

appropriate to extract the findings of the trial court at para 73,

which are as under:

"73). Thus, on a careful reading of the evidence of P.W.4 - the defacto complainant, P.W.7 - the mediator, P.W.9 - the Trap Laying Officer and Ex.P-9 - earliest report given by P.W.4, Ex.P10 - 164 Cr.P.C. statement recorded by the Magistrate and pre trap and post trap proceedings under Exs. P15 and 18, I do not see any reason to disbelieve their evidence not only in respect of demand prior to and on 27.11.2000, but also for the demand and acceptance on 30.11.2000."

51) A reading of the said findings does not anywhere indicate

consideration of evidence of PW6, who was also examined to

speak to the demands made prior to trap and also on the date of

trap. As held above, his evidence is totally inconsistent with the

evidence of PW4 and PW7. Since, he was not treated hostile by

the prosecution and as he was not subjected to cross-

examination by the prosecution, his evidence remains

unimpeached. Though the evidence of PW6 was referred to in

the judgment, but, it was mainly taken into consideration with

regard to movement of Ex.P1-application and meeting the A.O.

But, a close perusal of the evidence of PW6, in my view would

show that the same is at total variance with the evidence of PW4

in material aspects.

52) Further, mere recovery of money by itself, in my view, may

not be sufficient to show that the money was received as an

illegal gratification by Accused Officer from PW4 for doing official

favor. Definitely things would have been different had any

material been placed to show that this amount was paid as bribe

by PW4. Since, the evidence of PW6 and PW4 are per se

contradictory with regard to demand made prior to 27.11.2000

and also with regard to incident that took place on 30.11.2000, I

am of the view that it is a fit case where benefit of doubt can be

extended to the Accused Officer.

53) In N. Vijayakumar Vs. State of Tamil Nadu7 the Hon'ble

Apex Court while dealing with the situation where the

prosecution failed to prove the demand, held as under:

"12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe.

Criminal Appeal Nos. 100-101 of 2021 arising out of S.L.P. (Crl.) Nos. 4729-4730 of 2020

Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under:

"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] .

8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court

as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved.

54) In P. Satyanarayana Murthy v. District Inspector of

Police and Anr.,8 the Apex Court held that, mere possession

and recovery of currency notes from an accused without proof of

demand would not establish Section 7 as well as Section

13(1)(d)(i) & (ii) of the Prevention of Corruption Act. It has been

propounded that in the absence of any proof of demand for

illegal gratification, the use of corrupt or illegal means or abuse

of position as a public servant to obtain any valuable thing or

pecuniary advantage cannot be held to be proved. The proof of

demand, thus, has been held to be an indispensable essentiality

and of permeating mandate for an offence under Sections 7 and

13 of the Act. Dealing with the same, the Court observed as

under:

"The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder."

(2015) 10 SCC 152

55) The said principle was reiterated by the Apex Court in

Mukhtiar Singh (since deceased) through His Legal

Representative v. State of Punjab9, as under:-

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder."

56) From the judgments referred to above, it is clear that the

Apex Court has categorically held that, in order to prove a

charge under Sections 7 and 13 of 1988 Act, the prosecution

has to establish by proper proof, the demand and acceptance of

illegal gratification. The Apex Court held that till that is

accomplished, accused should be considered to be innocent. The

proof of demand of illegal gratification, thus, is the gravamen of

offence under Sections 7 and 13(1)(d)(i) and (ii) of 1998 Act and

in the absence thereof, unmistakably the charge, therefore,

would fail. The Apex Court went on to hold that mere acceptance

of any amount allegedly by way of illegal gratification or recovery

thereof, de-hors proof of demand, ipso facto, would thus not be

sufficient to bring home the charge under aforesaid two sections.

(2017) 8 Supreme Court Cases 136

57) In State of Punjab v. Madan Mohan Lal Verma10, the

Hon'ble Supreme Court held that, mere receipt of the amount by

the accused is not sufficient to fasten guilt, in the absence of any

evidence with regard to demand and acceptance of the amount as

illegal gratification'. It is appropriate to incorporate paragraph

No.7 of the said judgment, which reads thus:

"7. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when 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 a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, 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 1988 Act. 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 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. In a proper case, the court may look for independent

2013(3) MLJ (Crl) 565

corroboration before convicting the accused person."

58) In view of the evidence adduced by the prosecution and

having regard to the judgments referred to above, I am of the

view that, the amount, which was recovered from the diary

which was in front of the Accused Officer, was not the amount

paid by the PW4 as illegal gratification for doing a favour. This

finding is based on the evidence referred to above, wherein, the

prosecution failed to prove that there was a demand on

27.11.2000, a favour pending with the Accused Officer either on

the date of alleged demand or on the date of acceptance of

money in view of the inconsistent evidence of PW4 and PW6 on

the date of trap.

59) Therefore, in my view, the prosecution has failed to prove