Andhra Pradesh High Court - Amravati

V.Ravindrudu vs The State Of A.P., Rep. By ... on 22 January, 2021

Bench: C.Praveen Kumar

        HON'BLE SRI JUSTICE C.PRAVEEN KUMAR


              Criminal Appeal No.1158 of 2006

JUDGMENT :

1. This appeal is preferred under Section 374(2) of Cr.P.C.

challenging the conviction and sentence imposed in

C.C.No.27 of 2001 by the Additional Special Judge for SPE &

ACB Cases, City Civil Court, Hyderabad.

2. Originally, the accused officer, who was working as

Work Inspector in Singanamala Section of A.P. Housing

Corporation, was tried for the offences punishable under

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

of Corruption Act. Vide its judgment dated 31st August,

2006, the learned Special Judge convicted the accused officer

under both the counts and sentenced him to suffer rigorous

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

Rs.500/-, in default, to suffer simple imprisonment for three

months under each of the count. The substantive sentences

of imprisonment were directed to run concurrently.

3. The substance of the charge against the accused is that

on 12.10.2000, the accused, who was working as Work

Inspector, demanded and accepted a sum of Rs.500/- as

illegal gratification, from P.W.1 for sanctioning the pending

bill amount of Rs.4,500/-, spent towards construction of

house sanctioned to P.W.6.

4. The facts, as culled out from the evidence of the

prosecution witnesses, are as under :

P.W.6 is a mother-in-law of P.W.1. On 24.10.1998, the

M.L.A. of Singanamala sent proposal for six houses at

Narsapuram, in his quota for B.Cs. and E.B.Cs. The said

letter was forwarded to the District Collector for sanction and

accordingly the Collector sanctioned six houses and sent the

proceedings to the A.P. State Housing Corporation. P.W.4,

who was working as Senior Assistant in the A.P. State

Housing Corporation, sent these proceedings to Deputy

Executive Engineer, Housing, for construction of those

houses.

5. P.W.5 was working as Assistant Engineer in the office of

Singanamala Section of A.P. Housing Corporation during the

said period. According to him, after receipt of proceedings

from the Collector, the concerned Work Inspector visits the

beneficiary, observe the position of land and mark boundaries

for construction of house. Thereafter, the Corporation shall

issue proceedings to the beneficiaries for release of cement,

steel & bricks to the beneficiaries for construction of the

basement, after making entries in the Form No.30 register.

Thereafter, P.W.5 will sign the indent form and give it to the

concerned beneficiaries. The beneficiaries will collect the

same from the go-down. It has come on record that in case

the beneficiary himself intends to construct the house with

his funds, P.W.5 will take measurements of that house,

prepare M-book and submit it to D.E. for check

measurement. The Work Inspector concerned will take

valuation form, which will be incorporated in M-book. The

D.E., as per the said valuation, issues proceedings and send

it to the District Manager Office, who, in turn, will send it to

the bank and then the amount will be credited to the account

of the beneficiary. It is said that under Rural Permanent

Housing Scheme, an amount of Rs.17,500/- will be given to

each beneficiary, which includes cost of cement, bricks, W.C.

pan. After subtracting the costs of this material out of

Rs.17,500/-, the balance would be remitted to the account of

the beneficiary.

6. The evidence discloses that a house was sanctioned to

P.W.6 under RPHS scheme. After complying with the

requirements, on 17.4.1999, about 35 bags of cement, price

ranging from Rs.105/- to Rs.100/- were given to P.W.6, apart

from 250 cement bricks worth Rs.5.50 ps. each and a W.C.

panal worth Rs.285/-. The estimated value of the material

supplied to P.W.6, was about Rs.5,205/-. The Work

Inspector prepared the valuation form relating to P.W.6 and

P.W.5 prepared M-book record, which is placed on record as

Ex.P8. The total construction value as assessed by P.W.5 was

at Rs.13,000/-, including the cost of the material supplied.

While things stood thus, the claim of P.W.6 is that she was

given a cheque by the Housing Corporation for Rs.7,795/-

and the balance amount of Rs.4,000/- was not paid and that

she came to know that accused officer demanded bribe for

payment of the balance amount.

7. P.W.1 (who was declared hostile) in his evidence in chief

deposed that while the Corporation gave 35 bags of cement,

205 cement bricks and 1 W.C. pan along with cash of

Rs.7,500/-, he has spent, on his own, a further sum of

Rs.4,500/-.

8. As P.W.1 did not support the prosecution case and gave

a distorted version, it will be appropriate to refer to the

evidence of Investigating Officer with regard to the incident in

question. According to P.W.11, who was working as D.S.P.,

ACB, Tirupati Range, Tirupati, at the relevant point of time,

P.W.1 came to his house and presented a report on

13.10.2000 at 7.00 AM; pursuant to which, he directed him

to come in the afternoon. After verifying the bona fides of

P.W.1 and also the reputation of the accused officer, he found

the report of P.W.1 genuine and that the accused officer,

against whom the complaint was given, was corrupt. After

ascertaining these facts, he obtained permission from the

head office for registration of a crime and to lay a trap against

the accused officer. Pursuant thereto, he registered a case in

crime No.9/ACB-ATP/2000 under Section 13(1)(d) read with

Section 13(2) of Prevention of Corruption Act and issued

F.I.R. Ex.P18 is the F.I.R. He, then secured the presence of

P.W.2 and one Sanjeeva Kumar to act as mediators.

Accordingly, all of them met in the office of D.S.P. at 2.00 PM,

wherein P.W.1 was introduced to the mediators and the other

staff members. He gave a copy of the report given by P.W.1 to

the mediators, who, on being satisfied with the contents

therein and after examining the complainant-P.W.1, satisfied

with regard to the genuineness of the complaint. After P.W.1

produced the bribe amount of Rs.500/-, the numbers of the

notes were noted down in the first mediator's report, which is

placed on record as Ex.P6. Thereafter, the significance of the

phenolphthalein test and the manner in which it is done was

explained to P.W.1 and others. P.W.1 was instructed to give

the bribe amount only on demand made by the accused

officer and after acceptance of the amount, he was instructed

to give a signal by wiping his face thrice with his

handkerchief.

9. All the trap party members were directed to wash their

hands with soap water. The bribe amount was kept in the left

side shirt pocket of P.W.1. After completing the pre-trap

proceedings, the entire trap party reached the house of the

accused officer, located in the second road, Anantapur.

P.W.1, after receiving the instructions once again, got down

from the jeep and proceeded to the house of accused officer.

The trap party members also got down from the said vehicle,

proceeded to the vicinity of the house and took vantage

positions. P.W.2, who was one of the mediators to the pre-

trap and post-trap proceedings, states that while they were

outside the house of the accused, one person came out of the

house and proceeded towards northern side of the house on a

T.V.S. Suzuki motorcycle. The complainant (P.W.1) came

running and informed them that the person who left on the

motorcycle is Work Inspector who received the bribe amount

while making demand. He further informed that the accused

officer is going on urgent work towards R.T.C. bus stand.

Then, the entire trap party went to the R.T.C. bus stand and

reached near to the western side entrance of the bus stand.

At that point of time, they noticed the accused officer coming

out of the Gouthami Nursing Home, situated besides the bus

stand; got on to his motorcycle and then proceeded towards

the western side. The trap party followed him in their jeep.

10. After the accused officer entered the office, P.W.1 was

asked to stay outside the office room and Investigating

Officer, along with the mediators, went inside the office. After

disclosing their identity and after ascertaining the name of

the accused officer, sodium carbonate solution was prepared

by one of the members of the trap party and when the

accused officer rinsed his fingers, fingers of both his hands

turned positive to the phenolphthalein test. M.Os.3 and 4 are

the resultant solutions. When asked about the amount he

received from the complainant (P.W.1), the accused officer

produced a wad of currency notes from his left side shirt

pocket and kept them on the table. On instructions of D.S.P.,

the mediators picked up the notes, which tallied with the

numbers mentioned in the pre-trap proceedings. M.O.5 is the

said bunch of currency notes. The D.S.P. secured the shirt of

the accused officer and when the inner lining of the shirt

pocket was tested, the same proved positive to

phenolphthalein test. M.O.6 is a bottle containing resultant

solution. On demand made by D.S.P., the accused officer

produced Form-30 register and the measurement book.

Ex.P7 is the Form-30 register and Ex.P8 is the measurement

book. Thereafter, the D.S.P. called the complainant-P.W.1

and asked him to state as to what all happened after he left

the trap party. The same was incorporated in the second

mediators' report, which is placed on record as Ex.P10. The

rough sketch of the scene was also prepared, which is marked

as Ex.P9. The accused was arrested and released on bail.

After completing the trap proceedings, the house of the

accused officer was searched, but, nothing incriminating was

found. Ex.P19 is the search list of the articles found in the

house of the accused officer.

11. During the course of investigation, 164 Cr.P.C.

statement of P.W.1 was also recorded. Further investigation

in this case was taken over by P.W.12, the Inspector of Police,

who, after examining all the witnesses and after collecting the

necessary documents, filed charge-sheet before the court on

27.11.2001, which was taken on file as C.C.No.27 of 2001 by

the Additional Special Judge for SPE and ACB Cases, 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 officer, to which he pleaded not

guilty and claimed to be tried. The plea of the accused is one

of denial.

12. In support of its case, the prosecution examined P.Ws.1

to 12 and got marked Exs.P1 to P20. After completion of

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. He got examined

D.Ws.1 and 2 and got marked Exs.D1 and D2 in support of

his plea. Out of the twelve witnesses examined by the

prosecution, P.Ws.1, 9 and 10 did not support the

prosecution case and were treated hostile by the prosecution.

Since the material on record show that there was an official

favour pending with the accused officer and as the amount

was paid and received by the accused officer as illegal

gratification for doing an official favour, the trial court

convicted the accused. Challenging the same, the present

appeal came to be filed.

13. Sri Gudapati Venkateswara Rao, learned counsel

appearing for the appellant, would contend that since P.W.1

did not support the prosecution case, the entire fabric of the

case collapses and the appellant is entitled to succeed on that

score alone. He would further submit that as on the date of

demand, there was no favour which is pending with the

accused officer. According to him, when the evidence of

P.W.6 is to the effect that the work has not completed, the

question of releasing the amount would not arise. That being

so, the accused officer could not have demanded money for

clearing the bill. He further submits that having regard to the

fact that the accused officer went on his motorcycle from his

house to the bus stand, then to the nursing home, thereafter

to his office and opened lock of the office room, it is difficult to

believe that the phenolphthalein test would have still yielded

positive result, as his hands must have come into contact

with number of articles. He further pleads that P.W.1 came

to his house and kept the amount on a cooler without his

knowledge and the accused officer, having noticed the same,

thought that this must have kept by his wife or mother, took

it and went to the hospital. The said explanation figures in

the post trap proceedings, which, according to the counsel for

the appellant, cannot be an after thought. This version of the

accused officer, though denied by P.W.11, P.W.2, who were

present in the office at that time, deposed about the version

stated by the accused officer before the A.C.B. officials.

Having regard to the above and in the absence of any

evidence with regard to the demand by the accused officer,

the learned counsel would contend that the accused officer is

entitled for the benefit of doubt.

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

would submit that the evidence on record amply establishes

the involvement of the accused officer in the crime. According

to him, the version of P.W.1 that the amount was demanded

by one Gattu Mallaiah is false for more than one reason.

According to him, if really Gattu Mallaiah has demanded

money, there was no reason for the trap party to go to the

house of the accused officer, secondly, P.W.1 in chief deposed

that he gave a complaint to the D.S.P. and Ex.P1 is the

complaint given by him, in which demand is said to have

been made by the accused officer only and which is in his

handwriting. That being so, he would submit that P.W.1 was

won over to speak false, but, the circumstances, namely,

lodging of Ex.P1 being proved through the evidence of P.W.1

himself, it can be said that the demand made stands

established. Though P.W.1 speaks about demand made by

Gattu Mallaiah, P.W.6, mother-in-law, supports the

prosecution case stating that she came to know that the

accused officer demanded bribe from P.W.1, for paying the

balance amount and that P.W.1 lodged complaint against him

before the A.C.B. officials. The version of the accused officer

that there was no favour pending is absolutely incorrect for

the reason that the demand was made after the entire work

was completed and not when the work is pending. Therefore,

according to him, the demand and the recovery of the amount

from the accused officer being established and in view of the

fact that there exists an official favour to be done, pleads that

the finding of the trial court requires no interference.

15. The point that arises for consideration is, whether the

prosecution was able to bring home the guilt of the accused

beyond reasonable doubt for the offences punishable under

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

Prevention of Corruption Act?

16. It is well established principle of law that in order to

attract the offences punishable under Sections 7 and 13(1) of

the Prevention of Corruption Act, one of the foremost

ingredient to establish is that the accused officer is a public

servant at the relevant point of time and that he has

demanded and accepted or obtained gratification other than

legal remuneration from the complainant to do an official

favour. Before proceeding further with the case, it would be

just and proper to refer to two findings which the trial court

has arrived at and which remained unchallenged.

17. The learned trial Judge, after referring to judgments in

M.Narasing Rao v. State of A.P. (AIR 2001 SC 318);

T.Shankar Prasad v. State of Andhra Pradesh (2004

CrLJ. 884); State of A.P. v. Vasu Deva Rao (2004 CrLJ 620)

and Hazari Lal v. State, Delhi Administration [(1980) 2

SCC 390] and also the judgments relied on by the counsel for

the accused officer, namely, Sita Ram v. The State of

Rajasthan (AIR 1975 SC 1432); State of Madhya Pradesh

v. J.B.Singh [2001(1) ALD (Crl) 124 (SC)]; T.Subramanian v.

State of T.N. [2006(1) SCC 401]; and Dr.Navarathan Singh

v. State of A.P. [2006(2) ALD (Crl) 273 (AP)] held as under :

"No doubt in the present case, there is no direct evidence that the accused officer demanded bribe of Rs.500/- from P.W.1. There is also no direct evidence to show that P.W.1 paid Rs.500/- to the accused officer on the date of trap i.e., on 13.10.2000."

These two findings arrived at by the trial court namely that

there was no demand and also no evidence to show that the

amount was paid by P.W.1, it is now to be seen whether the

trial court was justified in convicting the accused. It appears

from the record that the trial court convicted the accused

merely on the ground that there was recovery of tainted

amount from the pocket of the accused officer.

18. In order to appreciate the same it will be appropriate to

refer to the evidence and also few judgments of the Apex

Court in this regard. It is evident from the record that the

complainant herein did not support the prosecution case and

he was treated hostile by the prosecution. His evidence in

chief was to the effect that the Supervisor Gattu Mallaiah

demanded a sum of Rs.500/- for realizing a sum of

Rs.4,500/-, which P.W.1 claims to have spent. At the same

time, P.W.1 admits to have met the D.S.P., ACB on

13.10.2000 at his office and gave a report. According to him,

Ex.P1 is a report given by him, which is in his handwriting. It

is to be noted here that he does not speak to the contents of

the first report given. On the other hand, his case is that the

report given by him against Gattu Mallaiah (not an accused)

was given to two mediators, who assembled in the office of the

D.S.P. prior to the trap and thereafter necessary steps were

taken to lay a trap against Gattu Mallaiah. However, on that

day, Gattu Mallaiah was not in the office and the same was

informed to the D.S.P. When P.W.1 informed D.S.P. that

Work Inspector - Accused Officer was present in his house,

which is nearby the office, he was asked to go and pay the

amount to him. Pursuant thereto, he went to the house of

the accused officer, at which time, the accused officer was

washing his feet to have lunch and after enquiring as to why

P.W.1 came to his house, asked him to go to the office and

wait there. Thereafter, P.W.1 is said to have kept the tainted

amount on a air cooler, which was beside the T.V. in the

house, then came out and informed the D.S.P. to that effect.

At the time D.S.P. and the staff rushed to the house of the

accused officer, but, accused officer left on the Suzuki

motorcycle towards R.T.C. bus stand. At that stage, this

witness was declared hostile.

19. Though he was subjected to lengthy cross-examination

by the Public Prosecutor, all the suggestions given to him

with regard to the contents of the first report were denied by

him. He also denied the suggestion that he went to D.S.P. to

inform that the accused officer demanded and received the

amount and he leaving the house on a motorcycle towards

the bus stand and that they followed him in the jeep. In the

cross-examination by the counsel for the accused officer, it

has been elicited that the complaint given by him against

Gattu Mallaiah was torn out by the A.C.B. people on

13.10.2000 and another complaint was taken from him

against the accused officer on the same day night. He further

admits that his statement before the Magistrate at Anantapur

and the statement before the court in

chief-examination are true. The accused officer did not

demand bribe from him at any time and did not accept it.

It is to be noted here that there is no witness to prove demand

and acceptance of the money. As against the evidence in

chief, all the suggestions given in the cross-examination by

the learned Public Prosecutor were denied.

20. Therefore, it is now to be seen whether there is any

material to prove the demand and acceptance of money.

A thorough perusal of the entire evidence on record does not

establish the same. However, the prosecution tried to rely on

the 164 Cr.P.C. statement of P.W.1 which was got recorded by

the Investigating Officer on 27.10.2000. Firstly, the said

statement is not placed on record. No explanation is

forthcoming as to why the said statement recorded under

Section 164 Cr.P.C. is not placed on record.

Secondly, the prosecution sought to show that the

accused officer threatened P.W.1 to give a statement before a

Magistrate, through the evidence of P.W.3. It would be

appropriate to refer to the evidence of P.W.3. P.W.3, who was

working as a Constable in Raptadu Police Station from

22.6.2000 till his retirement, in the absence of Sub-Inspector

and Assistant Sub-Inspector acted as Station House Officer

on that day. According to him, on 27.10.2000, while he was

in Police Station, P.W.1 came to the Police Station and lodged

a written report. He entered the receipt of the complaint in

the General Diary of the Police Station and took xerox copies

of the G.D. entry and submitted it to the A.C.B. In the said

complaint it was stated that on 13.10.2000 a trap was

arranged at the instance of the complainant and on

26.10.2000 night, while he was at his home, four unidentified

persons wearing masks and armed with weapons came to his

house and threatened him to give a statement before the

Magistrate on the next day, which made him to lodge Ex.P11

complaint. Ex.P12 is the xerox copy of the General Diary.

But, in the cross-examination, P.W.3 admits that the person,

who came and gave the complaint to him, is of the height of 5

feet 5 inches, fair complexioned medium built. He also

admits that he did not note nor can he give identity

particulars of the said complainant and the complainant was

wearing an adda pancha and no proof of identity of the

complainant was taken. It will be useful to extract the

relevant portion in the cross-examination of P.W.3, which is

as under :

"The person I said who came and gave the complaint to me is of the height 5 feet 5 inches, fair complexioned medium built. I did not note, nor I can tell any identity particulars of the said complainant. That complainant was wearing an adda pancha. I did not ask that complainant any proof of his identity."

21. It was further elicited from him that he has not entered

in the station dispatch register about he taking Exs.P11 and

P12 and handing over the same to A.C.B. and that there are

no stamps or seals of Raptadu Police Station on Exs.P11 and

P12. Further, there is no endorsement of acknowledgment,

seal or signature of the A.C.B. officials on Exs.P11 and P12 in

token of he handing over them to the A.C.B. and they

receiving them. It will be useful to extract the same, which is

as under :

"I have not entered in the Station Dispatch Register about my taking Exs.P11 and P12 to be handed over to the ACB. There are no stamps or seals of Raptadu Police Station on both Exs.P11 and P12. It is true there is no endorsement of acknowledgment, seal or signatures of the ACB officials on Exs.P11 and P12 in token of my handing over them to the ACB and they received them."

22. From the evidence of the said Constable, though the

prosecution tried to show that 164 Cr.P.C. statement said to

have been made by P.W.1 was due to fear created by the

accused officer on the previous day night, but, this court is of

the view that the answers elicited in the cross-examination of

P.W.3 does not establish that it was P.W.1 who went to the

Police Station on that day night and lodged the report. There

were neither identity particulars of the person who gave the

complaint, nor P.W.3 was asked to identify P.W.1 in the

Court. If the version in chief that it was P.W.1 who gave the

complaint is to be accepted, there was no necessity for him to

give answers with regard to identity of P.W.1, as stated in the

cross-examination. Further, Exs.P11 and P12 - the

complaint and the general diary entries, do not contain the

seals or endorsements of the A.C.B. officials, though they

were sent to them. Neither they were entered in the Station

Dispatch Register, nor do they contain stamps or seals of

Raptadu Police Station.

23. The prosecution tried to get over the contents of 164

Cr.P.C. statement through the evidence of P.W.3, but, in my

view, they were unsuccessful in proving that it was at the

behest of the accused officer. Probably, for this reason, they

intentionally omitted to mark this statement, more so as it

would demonstrate that the accused officer neither demanded

nor accepted bribe from P.W.1. At this stage, it will be useful

to refer to the evidence of the Investigating officer, who was

examined as P.W.11, to fortify the above findings, wherein he

deposed that he got the 164 Cr.P.C. statement recorded, in

which P.W.1 categorically stated that the accused officer did

not demand and accept the bribe. It will be proper to extract

the relevant admissions in the evidence of the Investigating

Officer, which is as under : -

"I got recorded the 164 Cr.P.C. statement of P.W.1 and he categorically reported that the A.O. did not demand or accept that bribe."

24. Therefore, the evidence of P.W.3 and the admissions in

the evidence of P.W.11, referred to above, amply establish

that the version of P.W.1 in the earlier statement before the

Magistrate was something different. In the absence of any

other evidence and as P.W.1 did not support the prosecution

case, which I have referred to earlier, it is clear that the

prosecution failed to prove the demand by the accused officer.

25. Coming to the theory of acceptance of the money as

bribe or as illegal gratification other than legal remuneration,

the trial court, as observed earlier, itself has held that there is

no direct evidence to show that P.W.1 paid Rs.500/- to the

accused officer on 13.10.2000. But, under what

circumstances was the tainted amount found in the pocket of

the accused officer? Secondly, whether mere recovery of the

tainted amount in the absence of any demand of bribe or

payment of money by P.W.1 on 13.10.2000, can be sufficient

to convict the accused?

26. As seen from the evidence available on record, more

particularly the evidence of mediators and the Investigating

Officer, money was not paid to the accused officer while he

was in the office. It is the evidence of the mediator-P.W.2 that

on 13.10.2000 at about 3.30 PM the entire trap party reached

the house of the Work Inspector - Accused Officer. P.W.1

alighted from the jeep after receiving the instructions from

D.S.P.; proceeded to the house of the Work Inspector,

followed by the trap party, who took vantage positions in front

of that house. Within few minutes after the complainant went

inside the house, they noticed the accused officer coming out

of that house and then proceeding on a T.V.S. Suzuki

motorcycle towards northern side of that house. At that time,

the complainant came out running and informed them that

the person, who left on the motorcycle, is the accused officer,

who received the bribe amount after demand (P.W.1 did not

speak to this fact). It was also informed that the Work

Inspector informed him that he has got an urgent work in the

RTC bus stand. Then all of them followed him and reached

near the western side entrance of the bus stand. There, they

noticed the Work Inspector - accused officer coming out of

the nursing home situated besides the bus stand, got on to

his motorcycle and proceeded towards the western side. The

trap party followed him in their jeep. The Work Inspector

reached his office, opened the door and went inside, which is

in the upstairs of that building. At that point of time, the raid

party entered into the office and disclosed their identity. On

instructions of D.S.P., one Inspector prepared sodium

carbonate solution in two glass tumblers, into which, on

asking by the D.S.P., the accused officer dipped his both

hands fingers separately resulting in solutions turning pink

in colour. When questioned, the accused officer failed to give

any explanation, but, however, took out money from his left

side pocket and kept it on the table. The numbers of the

notes tallied with the notes mentioned in the pre trap

proceedings. The accused officer produced Form-30 and the

Measurement book, which were shown in the post trap

proceedings.

27. In the cross-examination of P.W.2, it was elicited that

though they saw the accused officer coming out of the

nursing home, did not intercept him. Only after the accused

officer traveled a distance of 1 K.M. on his motorcycle and

when he reached the office, the trap party entered the office

and subjected the hands of the accused officer to

phenolphthalein test. Suggestions were given to P.W.2 that

the accused officer stopped his vehicle at Saptagiri Circle and

purchased tender coconuts; went back to the nursing home

to hand over the coconuts and then returned to his office,

but, all the suggestions were denied.

28. But, fact remains that accused officer, from his house,

first went towards the bus stand on his motorcycle and then

to the nursing home; came out of the nursing home and then

traveled a distance of 1 K.M. on his motorcycle so as to reach

his office. No effort was made to intercept the accused while

he left his house to go to the nursing home or when he came

out of the nursing home. Further, there is no evidence on

record to show that money was paid as bribe or otherwise to

the accused officer. The only version that is available is that

of P.W.1, who states that he kept the money on a air cooler,

in the house of the accused officer.

29. The explanation given by the accused officer was that he

noticed Rs.500/- on the air cooler and thinking that his wife

or mother must have kept it on the air cooler, took it and kept

in his shirt pocket. The version given by the accused officer

was suggested to all the witnesses including the Investigating

Officer, but, the same was denied. Obviously, none of them

have seen the said transaction, therefore, could not be in a

position to depose as to whether money was on the air cooler

or whether the money was paid by P.W.1 to the accused

officer inside the house. But, at this stage, it is to be noted

that the finding of the trial court, namely, that "no money was

paid by P.W.1 to the accused officer on 13.10.2000" is staring

at the prosecution. If no money is paid by P.W.1 on that day

and in the absence of any evidence on record to show that the

said amount was paid as bribe, can the accused be convicted

merely because tainted amount was found in his pocket,

more so, having regard to the version of P.W.1 (turned

hostile). In other words, in the absence of any evidence that

the accused officer received money as bribe pursuant to a

demand made, can mere recovery of money from his pocket

be sufficient to convict him, more so having regard to the

explanation given.

30. The learned counsel placed on record the evidence of

D.Ws.1 and 2 to show that on the date of trap at 3.30 PM

they went to the office of the accused officer, who enquired

about the health condition of his daughter who was admitted

in the said nursing home and when they were talking, the

trap party entered the office and questioned him about the

bribe amount. The version of D.Ws.1 and 2 was to the effect

that accused officer informed them that he has neither

demanded nor accepted the bribe amount from P.W.1 and

that he found the currency notes on the air cooler and

thinking that the same might have been kept by his wife or

mother while going to the hospital, took the amount and kept

the same in his pocket. But, however, the trial court rejected

the same on the ground that the presence of these two

witnesses was not suggested to mediators. But, one fact

which is required to be noted is, that the presence of these

two witnesses was suggested to the Investigating Officer, who

denied the same, but, however, the search list, which is

placed on record as Ex.P19, shows that the house owner i.e.,

D.W.1 attended through out the search. Be that as it may, as

observed by us earlier, there was no demand and there was

no acceptance of money pursuant to a demand and there is

no evidence on record to show that an amount of Rs.500/-

was paid as bribe on that day.

31. As seen from the evidence of the Investigating officer

(P.W.11) and the mediator - P.W.2, few facts which emerge

out are, no effort was made by the raid party to intercept

P.W.1 when he was going on motorcycle to his office from the

nursing home. They simply followed him. Even assuming

that the time was not enough to intercept him at that point of

time, nothing prevented them to intercept when he came out

of the nursing home. The evidence of the mediator itself

shows that the accused officer traveled a distance of 1 K.M. in

his motorcycle before he reached the office. No explanation is

forthcoming as to why they simply followed the accused

officer without apprehending him.

32. Coming to the fact that hands of the accused officer

turned positive to the phenolphthalein test, no test was

conducted to the handle or the grip of the motorcycle which

he rode from the home to nursing home and then to the

office. May be it is a minor circumstance, but, in the

circumstances of the case it would have been a crucial

aspect.

33. In these circumstances it will be appropriate to refer to

the judgment of the Apex court in Krishan Chander v. State

of Delhi1. It was also a case where the complainant did not

support the prosecution case and the court, after referring to

313 Cr.P.C. examination of the accused officer and taking

into consideration the fact that evidence on record does not

AIR 2016 SC 298

establish that there was any demand of bribe by the appellant

from the complainant. The court held as under :-

"34. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable Under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior Counsel on behalf of the Appellant. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus:

"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. and C.M. Girish Babu v. CBI. In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under:

"21. In State of Kerala and Anr. v. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

22. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence Under Sections 7 as well as 13(1)(d)(i) & (ii) of the 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. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence Under Section 7 and not to those Under Section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption Under Section 20 of the Act would also not arise.

23. 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."

35. Further, in the case of Satvir Singh v. State of Delhi [(2014) 13 SCC 143], this Court has held thus:

"34. This Court, in K.S. Panduranga case has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the abovesaid decision is extracted hereunder: (SCC pp. 740-41, para 39)

"39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption Under Section 20 of the Act which can be dislodged by the

accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated Under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation Under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted."

34. From the judgment referred to above it is very much

clear that even if there is recovery of money, but presumption

that it was accepted as illegal gratification would follow only if

there is proof of demand and accordingly it was held that in

the absence of proof of demand, such legal presumption

under Section 20 of the Act would also not raise.

35. Similar such view was taken by the Apex Court in C.M.

Girish Babu v. C.B.I. Cochin2;                        B. Jayaraj v. State of

Andhra Pradesh          3   and V.Sejappa v. State4.


36.   In State of Kerala and Anr. v. C.P. Rao                               5   the Apex

court held that mere recovery of tainted money is not

sufficient to convict the accused and there has to be

corroboration of the testimony of the complainant regarding

the demand of bribe.

AIR 2009 SC 2022

(2014) 13 SCC 55

AIR2016SC2045

(2011) 6 SCC 450

37. It was held in Mukut Bihari and Anr. v. State of

Rajasthan6 that the 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 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.

The Court held that though the burden is on the accused

under Section 20 of the 1988 Act to displace the statutory

presumption, but, at the same time, held the explanation

offered by the accused, if any, can be accepted on the

touchstone of preponderance of probability and not on the

touch stone of proof beyond all reasonable doubt. It was

further held that before the accused is calling upon to explain

as to how the amount was found in his possession, the

foundational facts must be established by the prosecution.

38. In Suraj Mal v. State (Delhi Admn.)7, 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. The mere recovery by

(2012) 11 SCC 642

(1979) 4 SCC 725

itself cannot prove the charge of the prosecution against the

accused, in the absence of any evidence to prove payment of

bribe or to show that the accused voluntarily accepted the

money knowing it to be bribe.

39. In Punjabrao vs. State of Maharashtra 8 the Apex

court held as under :

"It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability."

40. In view of the judgments of the Apex Court referred to

above, the prosecution has to lay the foundational facts that

there was demand of money and the acceptance was in

pursuance to a demand made and the said acceptance was by

way of a demand by the accused officer. In the instant case,

as stated above, neither of the two ingredients are proved.

Even if the explanation offered by the accused officer is

discarded, for the sake of argument, still that by itself, in my

view, is not sufficient to convict the accused.

41. At this stage, Sri S.M.Subhani, learned Standing

Counsel for A.C.B., represented that when there is official

favour pending, a presumption can be drawn that it was

accepted towards bribe. But, the existence of official favour

(2002 )10SCC 371

also appears to be doubtful. As seen from the record, P.W.6,

who in her evidence, categorically deposed that the entire

construction was under her supervision. Her evidence shows

that on the date of inspection of the house by the accused

officer, no plastering was done inside the house and latrine

was also not fixed. Two months thereafter, the work was

completed and thereafter, she sought for release of the

amount. There is no evidence on record to show that any of

the officials of the Corporation visited the house of P.W.6 to

find out whether the work was completed.

42. Of course, representations were made for release of the

amount on the ground that the work was completed, but

when the evidence of P.W.6 is to the effect that she herself

supervised the work and Rs.4,000/- has to be received by

her, the evidence of P.W.1 and other witnesses run contra to

the same. While the evidence of P.W.1 is to the effect that he

has spent money from his own pocket and that he is entitled

to receive a sum of Rs.4,500/-, the same is contrary to the

evidence of P.W.6. The evidence of P.W.5, who was the

Assistant Engineer in the office of Singanamala Section of

A.P. Housing Corporation, Anantapur, was to the effect that

P.W.6 has to be paid a cash of Rs.7,795/- and that she has

not completed the work worth of Rs.3,975/- and that amount

was not paid and will be paid after completion of the said left

over work. It will be useful to extract the relevant portion in

the chief-examination of P.W.5, which is as under :

"The total construction value assessed by me was Rs.13,000/- including the cost of the material supplied by us Rs.5,205.00 and I noted that she has to be paid cash of Rs.7,795/-. Because she has not completed some more work worth Rs.3,975/-, that amount was not paid and which will be paid only after the completion of the said left over work."

43. In the cross-examination, P.W.5 admits as under :

"Meddi Venkatamma personally took from our godown, cement, bricks and W.C. panal and she has personally executed the work of construction of her house. Venkatamma has personally went to the bank and received the amount as no one can withdraw her amount from that bank. The balance work I said she has not done is plastering of the inside walls of the house and construction of lavatory. She alone was looking after the construction work of her house and she did not authorize any one."

44. From the evidence of P.Ws.5 and 6 it goes to show that

the amount claimed or amount to be returned or that the

amount to be paid is not same. It is varying from witness to

witness. Further, the charge and the case of the prosecution

is that it was P.W.1, who was demanding payment of money

spent by him, but, the evidence of P.W.6 runs contra to the

case of the prosecution. Therefore, it is difficult to say that

there was an official favour pending with the accused officer,

as the work at the site was not complete, when P.W.5 &

others inspected the premises. Hence, I am of the view that

benefit of doubt can be given to the accused officer.

45. Having regard to the aforesaid reasons, the Criminal