State Rep.By Dy.Superintendent ... vs Sri P.M.K. Chowdary,
2023 Latest Caselaw 635 AP

     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

            CRIMINAL APPEAL NO.1002 OF 2007

JUDGMENT:-

      This is a Criminal Appeal filed by the State, being

represented by the Dy. Superintendent of Police, Anti-Corruption

Bureau, Vijayawada Range, Vijayawada, through the Standing

Counsel-cum-Special     Public   Prosecutor   for   ACB   Cases,

challenging the judgment, dated 04.04.2007 in C.C.No.3 of

2003, on the file of Special Judge for SPE & ACB Cases,

Vijayawada, whereunder the learned Special Judge, found the

respondent herein i.e., Accused Officer ("AO" for short) not

guilty of the charges under Sections 7 and 13(2) r/w 13(1)(d) of

Prevention of Corruption Act, 1988 and acquitted him under

Section 248(1) of the Code of Criminal Procedure ("Cr.P.C." for

short). But, at the same time, he made an order to prosecute

P.W.1 for perjury with a direction to lodge a complaint against

him before the jurisdictional Magistrate.

2) The parties to this Criminal Appeal will hereinafter

be referred as described before the trial Court for the sake of

convenience.

3) The State, represented by the Dy. Superintendent of

Police, Vijayawada Range, Vijayawada, filed a charge sheet in

Crime No.11/ACB-CR/2000, alleging in substance, as follows:

(i) The AO worked as Executive Engineer, Irrigation

Division, Krishna Central Division, Vijayawada, from May, 1999

to 25.07.2000 i.e., as on the alleged date of trap and as such,

he is a public servant within the meaning of Section 2(c) of

Prevention of Corruption Act, 1988.

(ii) Sri K. Venkat Rao, S/o Kesava Chandra Chowdary,

resident of Vijayawada (P.W.1) was a Civil Contractor, who

executed K.E.B. canal contract work pertaining to Irrigation

Department, Krishna, Central Division by 1999 July. On

24.07.2000 at 7-00 a.m. when P.W.1 approached the AO for

payment of the final bill pertaining to filling of scours in front of

Prakasam Barrage for the vents 1 to 50, the AO demanded

Rs.5,00,000/- as bribe and P.W.1 pleaded his inability. On that

the AO threatened him that he will not record the work in „M‟

book and settle the bill, unless he was bribed. After repeated

requests by P.W.1, the AO informed P.W.1 to pay Rs.1,00,000/-

as bribe on 25.07.2000 to him either at his residence or at his

Office and another Rs.2,00,000/- to be paid as and when the bill

amount was given. On that as P.W.1 was not willing to pay the

demanded bribe amount, he proceeded to the Dy.S.P., ACB, City

Range-I, Hyderabad, and presented Ex.P.8, who after observing

necessary formalities, registered as a case and investigated into.

(iii) On 25.07.2000 the AO was successfully trapped in his

residential office, when he further demanded and accepted the

bribe of Rs.1,00,000/- from P.W.1 in the presence of mediators

and the tainted amount was recovered from his physical

possession and when the S.C. solution test was conducted to

both the hand fingers and inner linings of the pant pocket and

handkerchief, it proved positive and thereafter the case was

investigated into and charge sheet was filed.

(iv) The Government of Andhra Pradesh issued

prosecution sanction order vide G.O.Ms.No.85, Irrigation & CAD

(Services-VI-I) Department, dated 08.05.2002 to prosecute the

AO. Hence, the charge sheet.

4) The learned Special Judge for SPE & ACB Cases,

Vijayawada, took the case on file under the above provisions

and after complying the necessary formalities Section 207 of

Cr.P.C., framed charges under Section 7 and Section 13(2) r/w

13(1)(d) of Prevention of Corruption Act, 1988 against A.O and

explained the same to him in Telugu, for which he pleaded not

guilty and claimed to be tried.

5) During the course of trial, on behalf of the

prosecution, P.Ws.1 to 14 were examined and Exs.P.1 to P.21

were marked and M.Os.1 to 10 were marked. After closure of

the evidence of the prosecution, AO was examined under

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

circumstances appearing in the evidence let in, for which he

denied the same and got filed a written statement contending in

substance as follows:

(a) He never demanded or accepted any illegal

gratification from P.W.1. P.W.1 got two works on tender basis

and entered into an agreement with Superintendent Engineer

under which he has to complete the work within 45 days by

20.06.1999, but, he could not complete it. He could complete

only 1/3rd of the work by then. So, the bills relating to his work

were not processed by the Section Officer because P.W.1 has to

file an application to the Superintendent Engineer for extension

of time and it has to be sanctioned and then only processing of

the bills would be commenced. No bill relating to the work of

P.W.1 was received by him till the date of trap. P.W.1 submitted

extension application after the trap and the same was approved

by the Superintendent Engineer. So, no work was pending

before him. In respect of the work relating to Exs.P.2 to P.4

even P.W.1 could not start the work.

b) The villagers and the local MLA pressurized him to see

that work was completed. AO asked P.W.1 to complete the

same. P.W.1 informed to him that he was unable to complete

and the works may be carried on by the villagers by ordering the

local contractors and the value of the work executed by them

will be paid to them by him out of the bills received by him from

the department. The villagers and local contracts insisted the

AO that they would carry on the works, if AO stood as a

guarantor and to see that the bills would be paid from out of the

bills realized by P.W.1. So, he was compelled to agree in the

interest of the public. Ch. Poornachandra Rao, M. Bujji,

P. Sreeramachandra Murthy and S. Satyanarayana Murthy

executed the works to a tune of Rs.4,45,000/- and odd during

June, 1999. P.W.1 submitted an application to the

Superintendent Engineer for extension of time which was

approved on 16.02.2000. Thereafter, Section Officer processed

the bills of P.W.1 for the works executed by him including those

works executed by local contractors and it was received by his

office and he passed the same and submitted to Pay and

Accounts Office during 2nd week of July, 2000. P.W.1 received a

cheque, dated 14.07.2000 and out of the cheque amount

received by P.W.1, he has to remit Rs.4,45,000/- and odd to the

four local villagers-cum-contractors. The said persons brought

to the notice of AO that P.W.1 was not paying the amounts.

Then, he insisted P.W.1 to pay the amount immediately, for

which P.W.1 informed him that he would send it.

c) On 25.07.2000 i.e., the date of trap while he was in

official quarter, at about 4-00 p.m. one person approached him

and introduced himself as K. Ramamohana Rao, cousin of P.W.1

and gave Rs.1,00,000/-, representing that P.W.1 sent the same

to be paid to the local villagers-cum-contractors for the works

executed by them. Then, he took the same and kept it in his

right side pant pocket and immediately the ACB officials arrived

there, to whom he spontaneously represented that he neither

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

explained what literally had happened in between them.

6) In furtherance to the defence, AO examined D.Ws.1

and 2 and got marked Exs.D.1, C.1, X.1 to X5.

7) The learned Special Judge for SPE & ACB Cases,

Vijayawada, on hearing both sides and on considering the oral

as well as documentary evidence, found the A.O not guilty of the

charges framed against him and accordingly, acquitted him

under Section 248(1) of Cr.P.C. Felt aggrieved of the same, the

State, represented by the Dy. Superintendent of Police, ACB,

Vijayawada Range, filed the present Criminal Appeal.

8) Now, in deciding this Criminal Appeal, the points

that arise for consideration are as follows:

1) Whether the prosecution before the Court below proved

that processing of the bills of P.W.1 relating to the works

executed by him was pending with AO prior to the date of trap

and on the date of trap in the manner as alleged by the

prosecution?

2) Whether the prosecution has proved before the Court

below that AO demanded P.W.1 the bribe amount prior to the

date of trap and during the trap so as to do official favour in

favour of P.W.1?

3) Whether the prosecution has proved the charges

against the AO beyond reasonable doubt?

4) Whether there are any grounds to interfere with the

judgment of acquittal recorded by the trial Court?

POINTS 1 to 4:-

9) Before going to appreciate the case of the

prosecution in this regard, this Court would like to make it clear

the fact that the AO was a public servant within the meaning of

Section 2(c) of the Prevention of Corruption Act, 1988 is not in

dispute. The further fact that the prosecution obtained a valid

sanction under Ex.P.20 is not in dispute. To prove the valid

sanction under Ex.P.20 the prosecution examined P.W.9 and got

marked Ex.P.20 and the evidence adduced by the prosecution in

this regard proves the fact that the Government after

consideration of the entire material available, accorded sanction

under Ex.P.20. The learned Special Judge gave appropriate

findings on point Nos.1 and 2 as to the fact that AO was a public

servant within the meaning of Section 2(c) of the Prevention of

Corruption Act, 1988 and prosecution obtained a valid sanction

to prosecute the AO. These aspects are not at all challenged

during the course of arguments in this Criminal Appeal.

10) Smt. A. Gayathri Reddy, learned Standing Counsel

for ACB and Special Public Prosecutor, appearing for the State,

would contend that unfortunately, P.W.1 turned hostile to the

case of the prosecution. He alleged as if things are against

L.W.2-K. Ramamohan Rao, the accompanying witness during

the post-trap. He developed a case by not supporting the case

of the prosecution that L.W.2-K. Ramamohan Rao informed to

PW.1 that AO expecting and demanding bribe and that basing on

the advice of L.W.2-K. Ramamohan Rao, he lodged a report to

ACB, Dy.S.P. and even during post-trap, he handed over the

amount to L.W.2-K. Ramamohan Rao and L.W.2-K. Ramamohan

Rao went into the residence of AO and handed over the amount

and came out. So, for obvious reasons, taking advantage of the

death of L.W.2-K. Ramamohan Rao, the accompanying witness,

P.W.1 turned hostile throwing blame against L.W.2.

11) She would further contend that prosecution

examined several witnesses to prove the pendency of the official

favour and there was no dispute that AO was a public servant

and he had to look after the processing of the bills pertaining to

work entrusted to P.W.1. The allegation is that AO threatened

P.W.1 that unless he pays the bribe amount, he will not record

the work in the "M" book and settle the bills. Having no other

go, P.W.1 accepted to give the bribe of Rs.1,00,000/- and he

lodged a report with ACB. The ACB taking care of all the issues,

got read over the contents of the report of P.W.1 through the

mediators to P.W.1 and conducted pre-trap and post-trap

proceedings and instructed P.W.1 that he shall give the amount

to AO only on his further demand. Accordingly, the entire trap

was laid according to the things which were planned and the

trap was successful. During the post-trap, AO demanded P.W.1

and took bribe of Rs.1,00,000/- and then the ACB trapped him.

L.W.2-K. Ramamohan Rao was accompanying witness, who

died. Taking advantage of it and due to lapse of time, AO own

over P.W.1, as such, P.W.1 turned hostile to the case of the

prosecution. However, P.W.2, the mediator, supported the case

of the prosecution. He has no reason to depose false. The fact

that AO dealt with the tainted amount is admitted by him with

another defence as if he unofficially got certain works got done

by the villagers and P.W.1 sent the amount through L.W.2-K.

Rammohan Rao, as such, he took over the amount to distribute

to villagers. So, the presumption under Section 20 of the

Prevention of Corruption Act, 1988 is applicable. AO examined

defence witnesses and their evidence is not at all convincing.

The learned Special Judge unnecessarily believed the defence

theory and acquitted the AO, as such, there are grounds to allow

the appeal.

12) Sri A. Hari Prasad Reddy, learned counsel appearing

for the respondent, would contend that the learned Special

Judge thoroughly appreciated the evidence on record. The own

prosecution witnesses admitted the fact that P.W.1 did not

complete the work within the time stipulated and also made

application seeking extension of time. So, unless and until, the

work was completed in all respects, the bill pertaining to P.W.1

could not be processed. The evidence on record proves the fact

that no official favour was pending with AO in respect of P.W.1

prior to the date of trap and as on the date of trap. P.W.1 never

deposed against AO that he demanded and accepted the bribe.

On the other hand, according to P.W.1, he was mislead by

L.W.2-K. Ramamohan Rao, who died as if AO was demanded the

bribe amount. So, the alleged demand prior to the date of trap

or subsequent to the date of trap was not proved. AO accepted

Rs.1,00,000/- from L.W.2-K. Ramamohan Rao, who died as

P.W.1 had to reimburse the villagers and AO examined

respective witnesses to prove the defence theory. He would

contend that as allegations of demand and acceptance of bribe

was not proved, presumption under Section 20 of the Prevention

of Corruption Act, 1988 has no application. Even otherwise, AO

could successfully discharge the burden. There are no grounds

to interfere with the reasoned judgment of the learned Special

Judge, as such, the Criminal Appeal has to be dismissed.

13) In the light of the above rival contentions of both

parties, firstly, this Court would like to deal with as to

prosecution had proved before the Court below successfully that

the official favour in respect of the work of P.W.1 was pending

with AO.

14) The testimony of P.W.1 is such that his cousin by

name K. Ramamohan Rao informed him that to pass the final

bill, AO was demanding the bribe amount, for which he

expressed his inability to do so. Then, Ramamohan Rao

suggested him to give a report to ACB. Since he happened to

know the Director General of Police, he gave report to the said

Director General of Police, who entrusted it to Dy.

Superintendent of Police, ACB. Ex.P.8 is his report.

15) In fact, as seen from the evidence of P.W.1, his

evidence is such that he undertook civil contract works of

Krishna Eastern Bank canal contract to a tune of

Rs.1,05,00,000/-. It has to be completed in three reaches and

also scours filling at vents 1 to 50. Through P.W.1, prosecution

got marked Ex.P.1, P.2 to P.4 and further Exs.P.5 to P.7-

supplementary agreements. He spoken to the fact that

previously he received part payment bill for Rs.33,00,000/-.

Then, K. Ramamohan Rao intimated to him that even prior to

part payment also AO demanded bribe and that if the demanded

bribe was not paid, final bill may not be drawn. He further

spoken the factum of handing over of Rs.1,00,000/- to

K. Ramamohan Rao towards bribe, etc.

16) It is altogether different aspect that he did not

support the prosecution in other aspects and was cross

examined by the Special Public Prosecutor and during the course

of cross examination by the Special Public Prosecutor what was

elicited is only the fact that he voluntarily gave Ex.P.8, etc. So,

even in his chief examination he did not state clearly throughout

necessary particulars explaining the manner on which date he

commenced the work and on which date he completed the work

and ultimately on which date he submitted the final bill, etc.

17) As seen from the case of the prosecution, P.W.1 got

two civil contract works relating to filling of scours in front of

Prakasam Barrage and vents 1 to 50 on tender basis. There is

no dispute that he entered into agreement with the department

under Ex.P.1. The stipulation period to complete the work was

within 45 days from 20.06.1999. He could start the work only in

July, 1999 and could complete 1/3rd of the work and he filed an

application for extension of time and this is borne out by record.

In respect of the second work, it was under three packages and

he entered into agreement under Exs.P.2 to P.4 and he has to

complete by 26.06.1999 i.e., within 45 days from the date of

agreement and even he could not start the work. He made an

application seeking extension of time on 07.07.1999 which was

sanctioned on 16.02.2000. There is no dispute regarding the

receipt of cheque to a tune of Rs.33,65,592/- towards part

completion of work.

18) To succeed in the aspect of pending of the official

favour, prosecution was supposed to establish that P.W.1 could

complete the rest of a work in all aspects, as such, bills were

pending with AO. The evidence of P.W.1, as pointed out, did not

disclose the manner in which he completed his task.

19) Coming to the evidence of P.W.3, it is clear from his

evidence that he measured the work in respect of Ex.P.1. He

did not prepare the bill since the contractor did not obtain

permission from the Superintendent Engineer.

20) P.W.3 admitted in cross examination about Ex.D.1

which is of his statement, dated 09.07.2000, explaining the

procedure for Ex.P.1 work. According to him, he gave original

Ex.D.1 to Dy. Superintendent of Police. As seen from Ex.P.1, it

is mentioned that P.W.1 is not entitled for the bill amount unless

he was permitted by the Superintendent Engineer.

21) The evidence of P.W.4 is also similar on the lines of

the evidence of P.W.3. According to the evidence of P.W.4, he

took measurements of the work carried by P.W.1 which was

checked by P.W.3. He testified in cross examination that he did

not prepare the bill as on 25.07.2000 for the reason that

extension of time application presented by P.W.1 to carry on

work was pending with Superintendent Engineer.

22) There is evidence of P.W.5 explaining that the work

relating to Exs.P.2 to P.4 was not completed and the final bill

was not prepared. It is he (P.W.5), who handed over Exs.P.2 to

P.4, P.7 to P.9 to the Dy. Superintendent of Police. AO got

elicited during his cross examination that because P.W.1 has to

get approval from the Superintendent Engineer for extension of

time, the bills under Exs.P.2 to P.4 were not prepared.

23) P.W.6, Assistant Engineer, stated that bill amount

was paid for the work carried on by P.W.1.

24) P.W.7 testified that as on the date of trap, the bill

amount was paid to P.W.1 for the works carried on by him. The

prosecution examined P.W.10, who testified that by 26.06.1999

P.W.1 did not complete the work, as such, he sought for

extension of time on 16.02.2000. In respect of the work

executed by him to a specified extent, the bills were paid. Even

the evidence of P.W.11 or P.W.12 also means that for want of

extension of time, the bill could not be processed and P.W.1

submitted application for extension of contract period and

subsequent to the trap only, he submitted application for

extension of time.

25) By virtue of the examination of the above witnesses

and looking into the documents, it is crystal clear that as on the

date of the so-called allegations of demand of bribe and as on

the date of trap, P.W.1 did not complete the work entrusted to

him within the stipulated period and insofar as the works done

by him prior to the trap, the entitled amounts were duly paid to

him. It is clear from the evidence of the above witnesses,

subsequent to the trap, his application for extension of time was

allowed and thereafter, the bill amount was paid. They

categorically explained that in view of the extension of time

application for agreement period relating to P.W.1 was pending

with Superintendent Engineer, the officials of the department

were prevented to process the bills relating to P.W.1. The

prosecution by standing its own legs and by virtue of the above

evidence let in failed to prove categorically that the processing

of the final bills of P.W.1 was pending with AO as on the date of

allegations of demand prior to the trap and on the date of trap.

Virtually, the evidence adduced by the prosecution to establish

that AO demanded bribe so as to process the final bills relating

to P.W.1 is very weak in nature and necessary details are

missing from P.W.1 and prosecution examined the above

witnesses, whose evidence is not pin pointing out that the

official favour in respect of the final bills of P.W.1 was pending

with AO as on the date of trap.

26) Now, another aspect to be seen here to decide this

appeal is as to whether on 24.07.2000 at 8-00 a.m., AO

demanded P.W.1 to pay bribe of Rs.5,00,000/- and reduced to

Rs.3,00,000/- by asking to pay Rs.1,00,000/- on 25.07.2000

and the balance thereof of Rs.2,00,000/- when the cheque for

final bill amount is given to him and that he further demanded

P.W.1 on 25.07.2000 during post-trap to pay the bribe and

accepted Rs.1,00,000/- from P.W.1. The prosecution should also

prove that the AO obtained undue advantage by demanding and

collecting the said amount within the meaning of Section

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

27) To decide the same, firstly, it is pertinent to look

into Ex.P.8. The substance of Ex.P.8 in this regard i.e., relates

to things happened prior to the date of trap is that on the date

of Ex.P.8 or by the date of Ex.P.8, P.W.1 finished the contract

and AO on that day demanded bribe of Rs.5,00,000/- to process

the final bill and later reduced to Rs.3,00,000/- and

Rs.1,00,000/- to be paid on 25.07.2000 and the rest of

Rs.2,00,000/- to be paid at the time of final clearance. So,

basing on the contents of Ex.P.8, investigating officer laid a trap

and could successfully trap the AO, according to the case of the

prosecution. When it comes to the evidence of P.W.1, he did

not support the case of the prosecution. He deposed on crucial

aspects that L.W.2- K. Ramamohan Rao used to look after the

work carried on by him, who is his cousin brother. He was told

by him prior to payment of the part final bill, AO demanded

bribe amount of Rs.1,00,000/- during the 1st week of July, 2000

and that if the amount was not paid, part payment bill will not

be drawn. So, he gave Rs.1,00,000/- to L.W.2-Ramamohan Rao

and on 14.07.2000 L.W.2-Ramamohan Rao gave a cheque for

an amount of Rs.33,00,000/-, which is relating to earlier bill. In

respect of the final bill, he claimed that Ramamohan Rao told

him that in order to pass final bill, AO demanded Rs.5,00,000/-

on 18th or 19th of July, 2000 and that he expressed his inability.

He asked L.W.2-Ramamohan Rao to inform his feelings to AO.

On 20.07.2000 L.W.2-Ramamohan Rao came back and told him

that unless he paid Rs.5,00,000/-, final bill amount will not be

drawn. Again he instructed L.W.2-Ramamohan Rao to meet AO

again. Later, L.W.2-Ramamohan Rao came back and informed

that atleast he has to pay Rs.2,00,000/- bribe and firstly he has

to pay Rs.1,00,000/- and the rest of amount will be paid at a

later time. So, L.W.2-Ramamohan Rao suggested to him to give

a report, as such, he gave Ex.P.8.

28) As rightly pointed out by the learned Special Judge,

the contents of Ex.P.8 are voluntarily made by P.W.1. P.W.1

was read over the contents of Ex.P.8 during pre-trap

proceedings. Apart from this, he gave a statement under Section

164 of Criminal Procedure Code before the jurisdictional

Magistrate adhering to the contents of Ex.P.8 as well as the

post-trap proceedings. So, it is a case where P.W.1 deliberately

deposed false for which the learned Special Judge rightly

ordered to lodge a complaint before jurisdiction Magistrate

against P.W.1 which is altogether a different aspect. However,

the fact that P.W.1 gave false evidence deviating from the

contents of Ex.P.8 as well as the post-trap proceedings, would

not enable this Court to take the contents of Ex.P.8 and the

contents of Ex.P.8 as gospel truth. So, the contents of Ex.P.8

and the events alleged in post-trap cannot be read in

substantive evidence, insofar as the case of the prosecution is

concerned, as projected in Ex.P.8 and as projected in Ex.P.11,

post-trap proceedings and insofar as the role attributed against

P.W.1 is concerned. So, virtually, the evidence is missing that

prior to date of trap i.e., at the time of processing of the part

payment of the bill and also prior to the date of trap and on the

date of trap, AO demanded P.W.1 to pay bribe as alleged. So,

the evidence is wanting in this regard.

29) The prosecution sought to prove the guilt against

the AO as regards the allegations of demand and acceptance of

bribe by relying upon the evidence of mediators i.e., P.W.2 and

the trap laying officer, P.W.13. It is to be noticed that P.W.2,

the mediator, was not a witness to the events happened

between AO and P.W.1. It is no doubt true that even the

evidence of P.W.1, the defacto-complainant as well as the

evidence of P.W.2, the mediator and the evidence of P.W.13, the

trap laying officer, means that the Dy.S.P., conducted pre-trap

proceedings explaining to the mediators about the importance of

Phenolphthalein test and applied Phenolphthalein powder to the

tainted currency and kept the amount in the pocket of P.W.1

asking him to pay the amount to AO on his further demand.

Though P.W.1 turned hostile to the case of the prosecution, but,

the evidence of P.W.2 and the trap laying officer (P.W.13)

means during the post-trap on receiving pre-arranged signal,

they rushed into the house of AO and subjected his hands to

chemical test which yielded positive result. AO produced the

tainted amount from his trouser pocket. So, the fact that AO

dealt with tainted amount is not in dispute. The prosecution has

sought to prove the guilt against the AO by relying upon a

presumption under Section 20 of the Prevention of Corruption

Act, 1988.

30) At this juncture, it is pertinent to extract here

Section 20 of the Prevention of Corruption Act, 1988:

20. Presumption where public servant accepts gratification other than legal remuneration.--

(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to

be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.

31) It is to be noticed that recently, the Hon‟ble

Supreme Court in the case of Neeraj Dutta v. State

(Government of NCT of Delhi) 1 , dealing with a batch of

Revisions and Criminal Appeals when the matter was referred to

the Constitutional Bench as to the quality of proof in case where

the complainant turned hostile or where the complainant died

and dealing with Sections 7 and 13(1)(d) r/w 13(2) and further

Section 20 of Prevention of Corruption Act, 1988 gave certain

observations. The Hon‟ble Supreme Court ultimately gave series

of directions. The Hon‟ble Supreme Court categorically held that

proof of demand and acceptance of illegal gratification by a

public servant as a fact in issue by the prosecution is sin qua

non in order to establish the guilt of the AO, Public servant,

under Sections 7 and 13(1)(d) r/w 13(2) and further Section 20

of Prevention of Corruption Act, 1988. Prosecution has to first

prove the demand of illegal gratification and subsequent

1 (2022) SCC OnLine SC 1724

acceptance, as a matter of fact. The Hon‟ble Supreme Court

dealt with the aspects in Section 7 of the Prevention of

Corruption Act and held that "if there is an offer to pay the bribe

by the bribe-giver without there being any demand from the

public servant and latter simply accept the offer and received

the illegal gratification, it is a case of acceptance as per Section

7 of the Act. In such a case, there need not be a prior demand

by the public servant. On the other hand, if the public servant

makes a demand and the bribe-giver accepts the demand and

tenders the demanded gratification which in turn is received by

the public servant, it is a case of obtainment. In the case of

obtainment, the prior demand for illegal gratification emanates

from the public servant. The Hon‟ble Supreme Court further

held that in the event the complainant turned hostile or has died

or is unavailable to let in evidence, demand of illegal

gratification can be proved by letting any evidence of any other

witnesses either orally or documentary evidence or the

prosecution can prove the case by circumstantial evidence.

32) Dealing with the presumption under Section 20 of

the Prevention of Corruption Act, the Hon‟ble Supreme Court

further held that on proof of the facts in issue of Section 7,

Section 20 mandates the Court to raise the presumption that the

illegal gratification was for the purpose of a motive or reward as

mentioned in the said Section. The Hon‟ble Supreme Court also

held that to raise the presumption under Section 20 of the Act,

prosecution should prove the foundational facts.

33) Keeping in view of the above, I would like to

appreciate as to whether presumption under Section 20 of the

Prevention of Corruption Act can be available to the case of the

prosecution. Needless to point out here that prosecution failed

to prove the foundational facts. Foundational facts are that AO

demanded P.W.1 to pay bribe prior to the date of trap especially

at the time of processing of the part of the bill and also prior to

the trap and also on the subsequent date of trap. So, as

pointed out as P.W.1 turned hostile, there remained nothing to

prove foundational facts. P.W.2, the mediator and the P.W.13,

the trap laying officer, were not the witnesses to the events that

took place between AO and P.W.1 actually. They employed

L.W.2-K. Ramamohan Rao, as accompanying witness.

34) It is to be noticed that the investigating officer used

the close relative of P.W.1 as an accompanying witness. To the

misfortune to the prosecuting agency, L.W.2-Ramamohan Rao

died and is no more now. So, L.W.2-Ramamohan Rao was the

person who was instructed by ACB, Dy.S.P. to observe the

events between AO and P.W.1, as he died, there remains

nothing to speak what happened between AO and P.W.1

actually. P.W.1 turned hostile to the case of the prosecution as

if he handed over the amount to L.W.2-Ramamohan Rao, who

went into the house of AO and returned back and relayed signal.

So, there is no direct evidence forthcoming to prove the demand

and acceptance of bribe. There were no witnesses who actually

witnessed the events in the house of AO in this regard. So, the

fact remained is that the foundational facts are not proved by

the prosecution, as such, in my considered view, the benefit

under Section 20 of the Act is not available. Even otherwise,

the AO thinking that there is a presumption in favour of the

prosecution, adduced the defence evidence by examining

D.Ws.1 and 2 and got marked several documents. Letting of

evidence by AO is in tune with the contents of written

statement. Evidence of D.W.1 means that as P.W.1 could not

complete the work within 45 days in respect of certain works

entrusted to him, they pressurized the AO and he,

Sreeramachandra Murthy, Satyanarayana Murthy,

Poornachandra Rao and others requested him to get the work

executed by P.W.1 and influenced AO through MLA and later AO

insisted P.W.1 to start the work for which he expressed his

inability. So, D.W.1 executed some works. Likewise

Poornachandra Rao, Sriramachandra Murthy and Satyanarayana

Murthy also executed some works. They were due of

Rs.1,92,500/-. Even after receipt of Rs.34,00,000/-, P.W.1 did

not pay the amount. AO stood as surety for the episode. Then,

they approached AO. AO told P.W.1 to clear their amounts. On

25.07.2000 at 6-00 p.m., they came to know that P.W.1 handed

over a sum of Rs.1,00,000/- to AO. Later, they insisted P.W.1

to pay their amounts. On 02.08.2000 P.W.1 paid Rs.1,92,500/-

by way of cheque to him. P.W.1 asked stamp receipt and he

handed over to P.W.1. Ex.C.1 is the Photostat copy of the

receipt.

35) The evidence of D.W.2 supported the evidence of

D.W.1 and claimed that P.W.1 issued certain cheques and made

certain payments. He paid Rs.1,92,500/- to M. Bujji,

Rs.1,25,700/- to P. Sreeramachandra Murthy, Rs.21,500/- to

Ch. Poornachandra Rao and Rs.1,06,200/- to S. Satyanarayana

Murthy. Exs.X.1 to X.4 are the original cheques issued by

P.W.1. During the cross examination of D.Ws.1 and 2, the

genuinity of the payments are not under dispute. So, the

factum of payments made by P.W.1 to D.Ws.1 and 2 and others

is established.

36) It is well settled that the standard of proof to prove

the defence of AO is not same as that of standard of proof with

which the prosecution has to prove the guilt. Prosecution was

supposed to prove the guilt against AO beyond reasonable

doubt. AO has to probabalize his defence by preponderance of

probabilities. So, AO was able to probabalise the payments

made by P.W.1 to D.Ws.1 and 2 and others by adducing defence

evidence and D.Ws.1 and 2 supported the theory of AO.

37) Under the circumstances, AO was able to

probabalize his defence theory. Even otherwise, as pointed out,

prosecution miserably failed to prove the foundational facts, as

alleged in Ex.P.8 and as alleged in post-trap to have the benefit

of presumption under Section 20 of the Prevention of Corruption

Act, 1988. So, as held by the Hon‟ble Supreme Court in Neeraj

Dutt's case (supra), the duty cast upon the prosecution to prove

the foundational facts. It is not a case where AO voluntarily

accepted the bribe amount, but, allegations are of demand and

acceptance. The Hon‟ble Supreme Court illustrated the incidents

where a bribe can be accepted without any demand and where a

bribe would be accepted with demand.

38) Having regard to the above, I am of the considered

view that the prosecution miserably failed to prove the

allegations of demand and acceptance of bribe by AO.

39) As seen from the judgment of the leaned Special

Judge, SPE & ACB Cases, Vijayawada, the learned Special Judge

to arrive at a conclusion that official favour in respect of the

work of P.W.1 was not pending with AO looked into the evidence

in proper perspective and appropriately gave findings that

prosecution failed to prove the said aspects. The learned Special

Judge on valid reasons, observed that prosecution did not prove

the allegations of demand and acceptance of bribe, as such, the

presumption under Section 20 of the Prevention of Corruption

Act, 1988 cannot be made applicable to the case on hand and

further observed that even otherwise AO was able to probabalize

the defence theory basing on the standard of proof of

preponderance of the probabilities.

40) Having considered the above, I am of the considered

view that absolutely there are no grounds to interfere with the

judgment of the acquittal recorded by the learned Special Judge

for SPE & ACB Cases, Vijayawada on thorough appreciation of

the evidence on record.

41) In the result, the Criminal Appeal is dismissed.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 07.02.2023.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.1002 OF 2007

Date: 07.02.2023

PGR