Andhra Pradesh High Court - Amravati

Special Judge For Spe And Acb Cases vs Unknown on 4 July, 2022

         THE HON'BLE SRI JUSTICE K.SREENIVASA REDDY

                    CRIMINAL APPEAL No.687 OF 2007

JUDGMENT:-

     The present appeal, under Section 378 (3) and (1) of the Code of

Criminal Procedure, 1973, is filed against the judgment and order of

acquittal dated 15.12.2006 passed in C.C.No.24 of 2000 by the learned

Special Judge for SPE and ACB Cases, Vijayawada, whereby the Accused

Officer, who is the respondent herein was acquitted of the charges for the

offences punishable under Sections 7 and 13(1)(d) read with Section 13

(2), 12 and 15 of the Prevention of Corruption Act, 1988 (for short 'the

Act, 1988).

2. The brief facts of the prosecution case are that one Karri

Ramachandra Rao (P.W.1/ de facto complainant) was running a liquor

shop at Dugguluru Village under the name and style of 'Sri Lakshmi

Mahankali Wines' and on 07.9.1998, at about 7.30 p.m., the Accused

Officer and his Circle Inspector visited the shop of de facto complainant

and demanded to pay Rs.45,000/- as bribe as monthly 'mamools' for five

(5) months i.e., from April to August @ Rs.7,000/- per month and

Rs.10,000/- for the license obtained by him to run the shop. On that

P.W.1 expressed his inability to pay, stating that he incurred loss in his

business. Then both of them threatened P.W.1 that they would implicate

him in a false case and cancel his licence. However, they have signed in

the Inspection Book maintained in the shop. Again on 10.9.1998, on the

instructions of the Circle Inspector, Prohibition and Excise,

Narasapuram, the P.W.1 met both the Accused Officer/respondent

herein and the Inspector. On that they both reiterated their earlier

demand. When the P.W.1 expressed his inability, they once again

threatened and obtained his signature in a blank paper and the Circle

Inspector demanded the P.W.1 to pay atleast an amount of Rs.10,000/-

as part payment either to him or to his Sub-Inspector within four or five

days and pay the balance amount by the end of September, and also

further demanded to pay Rs.7,000/- on every month as 'mamool'

(formality), for which the P.W.1 reluctantly agreed. Then the P.W.1

proceeded to the office of the Deputy Superintendent, ACB, Eluru range

(P.W.8) and presented Ex.P3 report, who after observing necessary

formalities, registered the same in Crime No.7/ACB-RCT-EWG/98 on

14.9.1998 and took up investigation.

3. In accordance with the standard procedure for trap cases,

arrangements were made and the Accused Officer was caught on

15.9.1998 at 8.20 a.m., when he received the tainted amount of

Rs.10,000/- from the P.W.1 and kept the same on loft (ataka) in

bathroom. Then as per the instructions of the ACB officials, the P.W.1

gave signal and on which the Inspector of Police, ACB (P.W.10)

conducted chemical test on the respondent/Accused Officer, which

yielded positive result. Then the tainted currency notes were recovered

from the possession of the Accused Officer. After considering material,

the Principal Secretary to the Government Revenue (Excise-I)

Department, Government of Andhra Pradesh, Hyderabad, issued

sanction orders against the Accused officer to prosecute him and on that

the Deputy Superintendent/P.W.8, who laid the trap, instructed the

Inspector of Police/P.W.10 to take up further investigation against the

Accused Officer. The Inspector of Police, ACB, Eluru range on completion

of investigation laid the charge sheet against the Accused

Officer/respondent herein for the offences punishable under Sections

7,13 (2) r/w 13(1) (d) of the Act, 1988.

4. The learned trial Court on receipt of charge sheet and upon

perusing the same and other material on record, framed the charges

punishable under Sections 7, 13(1) (d) r/w 13(2), 12 and 15 of the Act,

1988 and explained to the Accused Officer, who denied the same and

pleaded not guilty. Hence, the Accused Officer was put on trial.

5. To prove the case against the Accused Officer, the prosecution had

examined PWs1 to 10 and got marked Exs.P1 to P18 as well as

MOs 1 to 9.

6. After closure of the prosecution evidence, the Accused Officer was

examined under Section 313 Cr.P.C. and he denied the incriminating

material found in the evidence of the witnesses.

7. After taking into consideration, the material available on record,

the evidence produced by the prosecution, the plea of the accused and

the arguments advanced on behalf of both sides, the trial Court found

the Accused Officer 'not guilty' and acquitted him under Section 248 (1)

Cr.P.C. from the charges leveled against him.

8. Aggrieved by the said judgment of acquittal, the State preferred the

present appeal.

9. Heard the learned Standing Counsel for ACB appearing for the

appellant and the learned counsel for the respondent/Accused Officer.

10. Learned Standing Counsel for the appellant contended that there

are demands made by the Accused Officer on 07.9.1998 and 10.9.1998

for bribe and that the trial Court failed to appreciate the oral and

documentary evidence in proper perspective and erred in passing

acquittal order against the respondent/Accused officer. The learned

Standing Counsel further submits that the witnesses have clearly stated

with regard to the events that took place during post trap proceedings

including recovery of tainted currency and also with regard to the result

of the chemical test which yielded positive, but the Court below instead

of drawing legal presumption under Section 20 of the Act, 1988

erroneously acquitted the respondent/Accused Officer. Though the case

was established against the respondent/Accused officer for the charges

leveled against him, the Court below erred in passing the order of

acquittal. Hence, this appeal deserves to be allowed.

11. On the other hand, the learned counsel for the respondent submits

that the learned trial judge rightly acquitted the accused and has given

cogent and elaborate finding on facts since there are different versions

given by the prosecution witnesses i.e., P.Ws 1 and 2 and they both have

turned hostile. When once the prosecution witnesses have turned hostile,

the entire case, which rests on the prosecution goes in vain. Therefore,

he prays to dismiss the appeal.

12. Now the point for determination is;

 Whether the prosecution established the guilt of the Accused

Officer for the charges leveled against the accused beyond the

reasonable doubt and if so whether the learned trial Court erred in

acquitting the Accused Officer/respondent herein?

13. P.W.1 is the de facto complainant who presented Ex.P3 report to

the Deputy Superintendent, ACB to the effect that the Accused Officer

and Prohibition and Excise Inspector came to his shop and demanded

bribe amount and threatened him that they would implicate him in a

false case and cancel his licence on 07.9.1998 and 10.9.1998, if bribe is

not paid. But during the course of trial, he did not support the

prosecution case and turned hostile. P.W.2 who is stated to be the

employee under the P.W.1, and who is said to have accompanied the

P.W.1., stated his participation in Exs.P10 and P12 the pre and post trap

proceedings. But he also did not support the case of prosecution and

turned hostile. P.W.3 the then S.I. Excise Narasapuram stated that on

enquiry by the Trap Laying Officer, he produced Exs.P6 to P8 and they

were seized under the cover of mediators nama. P.W.4 who was on

sentry duty on the date of trap, stated that the A.C.B. police came and

enquired the presence of the Accused Officer and Excise Inspector.

P.W.5, who worked as Typist in the office of Joint Director, Animal

Husbandry, Eluru, acted as one of the mediators and he stated about his

participation in pre trap and post trap proceedings under Exs.P10 and

P12. P.W.6 the Section Officer, Revenue (Excise) Department of A.P.

Secretariat, Hyderabad stated about the processing and issuance of

Ex.P17 sanction order to prosecute the Accused Officer. P.W.7 the

Inspector, A.C.B., stated that he received Ex.P17 sanction order from the

Government and filed charge sheet. P.W.8 the Deputy Superintendent,

the Trap Laying Officer stated about the receipt of Ex.P3 from P.W.1 and

forwarding the same to P.W.10 to cause discreet enquiries and after

receiving the report from him, he registered Ex.P3 as F.I.R. in this case

and secured the presence of mediators and conducted pre and post trap

proceedings vide Exs.P10 and P12 in the presence of mediators. He

further stated about the arrest of Accused Officer, seizure of tainted

amount, conducting chemical test, seizure of records etc., The P.W.9

owner of the house wherein the Accused Officer was residing, stated

about letting out a single room to the Accused Officer on rent. P.W.10 the

Inspector stated that Ex.P3 was forwarded by the Trap Laying Officer to

cause discreet enquiries against P.W.1 the Accused Officer. He caused

discreet enquiries and then made endorsement and submitted the same

to the Trap Laying Officer.

14. Admittedly, the entire case rests on the evidence of P.Ws 1 and 2

and the report lodged by P.W.1. On perusal of Ex.P3 report, it shows that

the Accused Officer along with his staff visited the shop of P.W.1 and

made a demand to pay 'mamool' of Rs.7,000/- per month from April to

August months and Rs.10,000/- for the license obtained by him to run

the shop and thus they demanded Rs.45,000/- in total. On that P.W.1

expressed his inability to pay, stating he incurred loss in his business.

Then both of them threatened the P.W.1 that they would implicate him in

a false case and cancel his licence. Hence, the case against the Accused

Officer on the basis of said complaint lodged by P.W.1. But P.W.1 and

P.W.2 did not support the case of prosecution in toto and they have

shown volte-face.

15. The P.W.1 deposed during evidence that on 07.09.1998 after the

inspection was conducted by the S.I. and the C.I., a constable came to

the shop and informed that the S.I. and C.I. have requested him to pay

'mamool' of Rs.45,000/-, which includes Rs.10,000/- for issuing license

and Rs.35,000/- for five (5) months. Thus, it is not his evidence that it

was either the S.I. (Accused Officer herein) or the C.I. made direct

demand to him for the alleged amounts towards bribe as is the case of

the prosecution. He further deposed that it is the very same constable

that approached him again after two days and made the same demand.

Thus the prosecution case that the S.I. (Accused Officer) or the C.I. or

they both together, demanded the P.W.1 for the bribe by coming to the

P.W.1. is not the evidence brought on to the record.

16. Though it is the case of the prosecution that the report in Ex.P3

was prepared in the own handwriting of P.W.1 and it was on his own, the

same is not deposed by P.W.1 and on the other hand he stated in his

cross-examination for the Accused Officer that on 11.9.1998 he visited

the ACB Office and met one Constable and narrated the incident that one

Excise Constable demanded 'mamool' and then he took him the Dy.S.P.,

ACB to whom he narrated and that the Dy.S.P., asked him to give report

in writing and when he expressed his inability in writing complaint, the

Dy.S.P. dictated and then he wrote the same. The P.W.1 stated further in

his cross-examination that the Accused Officer never demanded him

bribe.

17. The P.W.1 deposed in his evidence in-chief, itself that he went

along with his clerk (P.W.2) and P.W.2 went into the house of the

Accused Officer while he was waiting outside on the steps, and returned

stating that he gave money which was tainted to the Accused Officer.

Then P.W.1 gave signal to the ACB Officials as per the pre arranged plan.

Thus, according to his evidence he did not directly give the money to the

Accused Officer. It is true that the P.W.2 gave the money to the Accused

Officer.

18. The P.W.2 deposed that he along with P.W.1 went into the room of

the Accused Officer and P.W.1 took out the money from jip bag and

placed the same on the table of the Accused Officer, and then again

P.W.1 folded the money in a paper and placed on the loft (Ataka), which

is in bathroom.

19. Both P.Ws 1 and 2 have deposed that after trap party went into the

house of the Accused Officer, they were asked to wait outside and they

do not know as to what happened later.

20. Though both P.Ws 1 and 2 were declared hostile and suggested

with the case of the prosecution, the same is denied by them. In fact, in

the cross-examination of the P.W.2 for the Accused Officer, he stated

that the Accused Officer did not demand him any amount and it was at

any time. He also stated that neither the Accused Officer nor the C.I. or

the competent officers either to issue or cancel the license for the shop

and it is only the Excise Superintendent that is competent to do so. He

also stated that both P.W.1 and himself gave shake hand to the Accused

Officer and returned.

21. Further from the evidence of P.W.3, who worked as Sub-Inspector,

Excise, Narsapuram during whose tenure ACB Officials searched the

office of the C.I., they did not find any blank papers signed by the P.W.1,

which according to the prosecution were obtained from the P.W.1 by the

Accused Officer and C.I. under threat. Even according to P.W.10 who

was said to be entrusted with Ex.P3 report and sought for verification of

the antecedents of the P.W.1 and the Accused officer, he did not trace

any blank paper signed by the P.W.1.

22. In this background, the evidence of the panch witness examined as

P.W.5, who is also a government servant, who in fact, as per the

prosecution case also did not witness either the demand said to be made

by the Accused Officer for bribe or the Accused Officer receiving the

tainted money from P.W.1 or P.W.2. His evidence is only to the effect that

on chemical test, the fingers of the Accused Officer changed in colour

and that yielded positive result. This could be due to touching the

Newspaper wherein the chemical applied cash was said to be kept in and

placed on 'Ataka' or on table in the house of the Accused Officer, either

by the P.W.1 or by the P.W.2.

23. The evidence of P.W.9 the owner of the house/room, which was let

out to the Accused Officer is of no use as he simply deposed that he let

out his residential house to the Accused Officer.

24. The law on the issue is well settled that demand of illegal gratification

is sine qua non for constituting an offence under the Act, 1988. Mere

recovery of tainted money is not sufficient to convict the accused when

substantive evidence in the case is not reliable. Unless there is evidence

to prove that there is demand for illegal gratification and also 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, the accused cannot be held guilty. If once prosecution

establishes the demand and receiving of bribe, then the burden rests on

the accused to displace the statutory presumption raised under Section

20 the Act, 1988, by bringing on record evidence, either direct or

circumstantial, to establish with reasonable probability, that the money

accepted by him is other than as 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

corroboration before convicting the accused person."

25. It is also to be noted that, this being an appeal against acquittal,

interference is impermissible, unless the judgment of acquittal tends to

be perverse or unless the inferences drawn in acquitting the accused are

not reasonable.

In the case of M.S. Narayana Menon @ Mani v. State of Kerala

& Anr.16, the Apex Court has narrated the powers of High Court in

appeal against the order of acquittal. In para 54 of the decision, the Apex

Court has observed as under:

"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."

26. In view of explanation given by the Accused Officer and it is

inconsonance with the evidence of P.Ws 1 and 2 who have not supported

the case of prosecution, as they were treated hostile, this Court is of the

opinion that nothing is put forth by the appellate-State to reverse the

conclusion of the trial Court. The trial Court has given cogent reasons for

coming to the conclusion that no case under the P.C. Act, 1988 is

proved by the prosecution. The learned Standing Counsel has failed to

bring home the charges levelled against the accused and also failed to

persuade this Court to take a different view than that was taken by the

trial Court.

1 (2006) 6 SCC 39

27. In the case on hand it is clear from a perusal of the order that the