Andhra Pradesh High Court - Amravati
Talluri Gilbert Subhashan Kumar vs The State Of Ap on 13 July, 2023
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL Nos.474 & 497 OF 2015
Between:
CRIMINAL APPEAL No.474 OF 2015
Talluri Gilbert Subhashan Kumar
@ Kumar, S/o.George, Aged 53 years,
Hindu, Ex-Revenue Inspector-1,
O/o.MRO, Nallajerla Mandal,
Now Senior Assistant, Chintalapudi (PO) & (M),
West Godavari District, AP. .... Appellant/AO-1
Versus
1. The State of AP,
Rep. by Spl. Public Prosecutor for ACB cases,
High Court of A.P.
Amaravathi.
2. The State of AP.,
Rep. by Deputy Superintendent of Police,
ACB, Eluru Range, Eluru (PO),
West Godavari District (AP). .... Respondents
CRIMINAL APPEAL No.497 OF 2015
Chevala Satyanarayana
S/o.Narayana, Aged about 43 years,
Occ:Deputy Tahsildar,
R/o.H.No.12-40, Zaviour Nagar,
Eluru, West Godavari District. .... Appellant/AO-2
Versus
The State of AP,
Rep. by Spl. Public Prosecutor,
Anti Corruption Bureau
High Court of A.P.
Amaravathi. .... Respondent.
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Crl.A. Nos.474 & 497/2015
DATE OF COMMON JUDGMENT
PRONOUNCED : 13.07.2023
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
2. Whether His Lordship wish to see
The fair copy of the judgment? Yes/No
______________________________
A.V.RAVINDRA BABU, J
AVRB,J
Crl.A. Nos.474 & 497/2015
* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ CRIMINAL APPEAL Nos.474 & 497 OF 2015
% 13.07.2023
# Between:
+ CRIMINAL APPEAL No.474 OF 2015
Talluri Gilbert Subhashan Kumar
@ Kumar, S/o.George, Aged 53 years,
Hindu, Ex-Revenue Inspector-1,
O/o.MRO, Nallajerla Mandal,
Now Senior Assistant, Chintalapudi (PO) & (M),
West Godavari District, AP. .... Appellant/AO-1
Versus
1. The State of AP,
Rep. by Spl. Public Prosecutor for ACB cases,
High Court of A.P.
Amaravathi.
2. The State of AP.,
Rep. by Deputy Superintendent of Police,
ACB, Eluru Range, Eluru (PO),
West Godavari District (AP). .... Respondents
! Counsel for the Appellant (AO-1) : Sri P.Narasimha Rao,
(Crl.A.No.474 of 2015) Learned Counsel.
! Counsel for the Appellant (AO-2) : Sri M.B.Thimma Reddy,
(Crl.A.No.497 of 2015) Learned Counsel.
^ Counsel for the Respondent : Smt. A. Gayathri Reddy,
Learned Standing Counsel-
cum-Special Public Prosecutor
> Head Note:
? Cases referred:
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1. (2009) 15 SCC 200
2. (2013) 14 SCC 153
3. (2014) 14 SCC 516
4. (2014) 13 SCC 143
5. (2022) SCC OnLine SC 1724.
6. (2022) 4 SCC 574
7. (2016) 1 SCC 713
8. 2014 (2) ALD (Crl.) 73 (SC)
9. (2015) 10 SCC 152
10. (2001) 1 SCC 691
This Court made the following:
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Crl.A. Nos.474 & 497/2015
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL APPEAL Nos.474 & 497 OF 2015
COMMON JUDGMENT:
The judgment, dated 15.05.2015, in Calendar Case No.1 of
2006 on the file of the Court of Special Judge for SPE and ACB
Cases-cum-III Additional District and Sessions Judge, Vijayawada
(for short, „the learned Special Judge‟), is under challenge in these
two Appeals. Criminal Appeal No.474 of 2015 is filed by the
appellant, who was the Accused Officer No.1 (AO-1) and Criminal
Appeal No.497 of 2015 is filed by the appellant, who was the
Accused Officer No.2 (AO-2), in the aforesaid Calendar Case
respectively.
2. Both the Appellants, as above, as Accused Officers No.1 and
2, faced joint charges before the learned Special Judge for the
offences under Sections 7 and 13(1)(d) R/w. Section 13(2) of the
Prevention of the Corruption Act, 1988 (for short, „the PC Act‟). The
learned Special Judge found both the appellants herein guilty of
the charges and convicted and sentenced them.
3. The parties to these Criminal Appeals will hereinafter be
referred to as described before the trial Court, for the sake of
convenience.
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4. The State, represented by Inspector of Police, Anti
Corruption Bureau, Eluru Range, Eluru, West Godavari District
filed charge sheet pertaining to Crime No.5/ACB-RCT-EWG/2003
of ACB, Eluru Range, Eluru, West Godavari District alleging the
offences under Sections 7 and 13(1)(d) R/w. Section 13(2) of the
PC Act against the Accused Officers No.1 to 3. The case of the
prosecution, in brief, according to the charge sheet averments, is
as follows:
(i) AO-1 - Talluri Gilbert Subashan Kumar @ Kumar
worked as Revenue Inspector-1 (RI) from 22.11.2002 to
22.07.2003; AO-2 - Chevala Satyanarayana worked as Mandal
Revenue Officer (MRO) from 15.11.2002 to 22.07.2003 and AO-3 -
Jukunta Narasimhulu worked as Mandal Deputy Surveyor from
04.10.1997 to 22.07.2003 in the Mandal Revenue Office, Nallajerla
Mandal, West Godavari District. By virtue of the positions held by
them, all the Accused Officers come under the category of „Public
Servants‟ within the meaning of Section 2(c) of the PC Act.
(ii) LW.1 - Chinta Srikrishna Chaitanya is a resident of
Nallajerla Village and Mandal. He purchased an extent of Ac.2.43
cents from his villager - Rayudu Dharma Rao in his name and
also an extent of Ac.2.21 cents of agricultural land from one
Chundru Gandhi of his village in the name of his mother - Chinta
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Satyavathi in the year 2001. He got the lands registered at Sub-
Registrar Office, Ananthapalli. He intended to dig a bore well in
the lands of his mother by obtaining a bank loan. Therefore, he
applied for Pattedar Passbooks for the aforesaid two bits of lands
to MRO, Nallajerla along with the required documents. MRO,
Nallajerla signed the applications and sent to the Revenue
Inspector on the same day. LW.1 requested the Revenue Inspector
(AO-1) to issue pattedar passbooks. Then AO-1 demanded him
Rs.1,000/- as bribe. He approached AO-1 frequently and
requested him for issuance of the pattedar passbooks but he
demanded bribe of Rs.500/- for each pattadar passbook.
(iii) On 18.07.2003, LW.1 approached the MRO (AO-2) and
requested him for issuance of pattedar passbooks. On that AO-2
replied that after receiving the report from the AO-1, he would
issue the same. On 19.07.2003, LW.1 met AO-1 at his office and
asked about the pattedar passbooks and then AO-1 demanded the
bribe amount. LW.1 expressed his inability to pay the demanded
bribe to AO-1. AO-1 reduced the bribe to Rs.600/- and informed
LW.1 that if the said amount is not paid, he will not process for
issuance of pattader pass books. LW.1 was not willing to pay the
demanded bribe amount, as such he approached the DSP, ACB,
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Eluru (LW.11) and submitted his report on 21.07.2003 at 12:00
noon and requested DSP, ACB, Eluru to take action against AO-1.
(iv) LW.11 registered the report of LW.1 as a case in Crime
No.5/ACB-RCT-EWG/2003 for the aforesaid offences, after due
verification and investigated into. He secured the services of LW.1
as decoy and LW.8 - Rongala Venkateswara Rao and LW.9 -
Tangirala Venkata Satya Surya Nagendra Rao as mediators. He
complied all the necessary formalities to organize the trap against
the Accused Officers.
(v) On 22.07.2003, at 07:55 p.m., LW.1 gave a pre-
arranged signal to the trap party. LW.11 and his staff along with
the mediators rushed into the office of MRO. LW.1 informed that
as per the instructions of LW.11, he went to AO-1, who informed
him that the work was completed at his end and directed LW.1 to
go to AO-2. He went to AO-2 and as per the instructions of AO-2
he handed over the bribe amount to AO-3 - Mandal Deputy
Surveyor, Nallajerla and that AO-3 received the amount and left
the office on his motorcycle and thereafter AO-2 signed on the
pattedar passbooks and title deeds. Then, LW.11 deputed Sri
U.V.Ramesh Babu - LW.12, who is Inspector of Police, ACB, Eluru
to trace out AO-3 and produce him. Accordingly, after some time,
LW.12 produced AO-3 along with another Police Constable -
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Bhimadole Durgaiah (LW.2) - PC.465 of Ananthapalli PS, West
Godavari District. According to the version of AO-3, the amount
was given to B. Durgaiah as such he brought the said Durgaiah.
LW.11 questioned AO-3 to produce the amount received from
LW.1. AO-3 stated that he gave the amount to B. Durgaiah (LW.2)
PC.465 of Ananthapalli Police Station. Then, the DSP, ACB
conducted sodium carbonate test on the inner linings of right side
hip pocket of the pant of AO-3 and the test yielded positive result.
On further questioning, B. Durgaiah produced a wad of currency
notes wrapped in a paper from his uniform right side pant hip
pocket. The serial numbers of currency notes recovered from B.
Durgaiah were verified by the mediators and found to be tallied
with the number of currency notes mentioned in the pre-trap
proceedings. B. Durgaiah stated that he received the amount from
AO-3 but he did not know the nature of the money. The
investigation revealed that TGS Kumar (AO-1) - MRI-1, Nallajarla
demanded the complainant to pay a bribe of Rs.600/- for showing
official favour for getting issuance of pattadar passbooks in respect
of lands of LW.1 - de-facto complainant and his mother. Ch.
Satyanarayana (AO-2) demanded the bribe of Rs.600/- and
received through AO-3, on the date of trap and AO-3 having
received the bribe amount, on the instructions of AO-2, went
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away after receipt of the bribe amount from LW.1 and handed over
the same to LW.2 - Police Constable. The DSP, ACB arrested the
AO-1, AO-2 and AO-3 on 23.07.2003 at 07:30 a.m. and sent them
for judicial custody. Later, they were enlarged on bail on
24.07.2003. The statements of LW.1 and LW.2 were recorded
under Section 164 Cr.P.C. before the Principal Junior Civil Judge,
Tadepalligudem on 26.07.2003.
(vi) During the course of investigation, LW.11 has
examined LW.1, LW.2 and LW.3 - Lankapalli Gandhi Babu and
further LWs.4 to LW.7 namely Chinta Satyavathi, Pennada Vasu
Deva Satyanarayana, Savalam Pullaiah, Challa Penchala Reddy.
The material gathered during investigation establishes the offences
under Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act
against AO-1 to AO-3.
(vii) The Government of Andhra Pradesh being the
competent authority to remove Accused Officers from service,
accorded sanction vide G.O.Ms.Nos.514, 515 and 516, dated
20.04.2005 of Rev. (Vig.II) Department respectively.
5. The learned Special Judge took cognizance of the case under
the above provisions of law and, after appearance of the Accused
Officers, by complying the necessary formalities under Section 207
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Cr.P.C, framed joint charges under Sections 7 and 13(1)(d)
R/w.13(2) of the PC Act against the Accused Officers No.1 and 2,
read over and explained to them in Telugu for which they pleaded
not guilty and claimed to be tried. Insofar as AO-3 is concerned,
the case against him was abated on 05.09.2007.
6. To bring home the guilt of the Accused Officers, the
prosecution before the Court below, examined PWs.1 to PW.13 and
got marked Exs.P-1 to P-29 and Ex.X-1 and further marked MOs.1
to MO.18.
7. After closure of the evidence of the prosecution, AO-1 and
AO-2 were examined under Section 313 Cr.P.C with reference to
the incriminating circumstances appearing in the evidence let in
by the prosecution, for which they denied the incriminating
circumstances.
8. AO-1 during his 313 Cr.P.C. examination put forth a version
that he was not present at the time of trap. The chemical test
proved negative. He does not know what happened. He attended
the work on his part and PW.1 never made rounds around him. He
does not know PW.1. He recently went to Nallajerla and
purposefully PW.1 implicated him in the case. AO-2 put forth a
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version during his 313 Cr.P.C examination that they did not
commit any offence. In fact no report was lodged against him. He
did not demand any amount and no amount was recovered from
him. The chemical test proved negative and he was falsely
implicated in the case.
9. The learned Special Judge, on hearing both sides and after
considering the oral and documentary evidence on record, found
both the Accused Officers guilty of the charges and convicted them
under Section 248(2) Cr.P.C. The learned Special Judge after
questioning AO-1 and AO-2 about the quantum of sentence,
sentenced each of them to undergo Rigorous Imprisonment for a
period of one year and to pay a fine of Rs.20,000/- each in default
to undergo Simple Imprisonment for three months each for the
charge under Section 7 of the PC Act. The learned Special Judge
further sentenced them to undergo Rigorous Imprisonment for one
year each and to pay a fine of Rs.20,000/- each in default to suffer
Simple Imprisonment for three months each for the charge under
Section 13(2) R/w. Section 13(1)(d) of the PC Act. Both the
sentences shall run concurrently.
10. The learned Special Judge, by virtue of the impugned
judgment, directed the Chief Administrative Officer to lodge a
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complaint before the III Additional Chief Metropolitan Magistrate,
Vijayawada against PW.1 - Ch. Srikrishna Chaitanya and PW.10 -
Chinta Satyavathi for perjury.
11. Felt aggrieved of the conviction and sentence imposed
against AO-1 and AO-2, they filed Criminal Appeal Nos.474 and
497 of 2015 seperately.
12. Now, in deciding these Criminal Appeals, the points that
arise for consideration are as follows:
1) Whether the prosecution before the Court below has
proved that AO-1 and AO-2 were „public servants‟
within the meaning of Section 2(c) of the PC Act and
whether the prosecution obtained a valid sanction to
prosecute them under Section 19 of the PC Act for the
charges framed against them?
2) Whether the prosecution before the Court below has
proved pendency of official favour in respect of the
work of PW.1 and his mother with Accused Officers
No.1 and 2 prior to the date of trap and on the date of
trap?
3) Whether the prosecution before the Court below has
proved that AO-1 and AO-2 demanded PW.1 to pay a
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bribe of Rs.600/- and accepted the said bribe amount
in consequence of demand within the meaning of
Section 7 of the PC Act and if so whether such act on
the part of AO-1 and AO-2 would amount to criminal
misconduct in terms of Section 13(1)(d) R/w Section
13(2) of the PC Act?
4) Whether the impugned judgment, dated 15.05.2015,
is sustainable under law and facts and whether there
are any grounds to interfere with the judgment of the
learned Special Judge?
13. POINT No.1: The case of the prosecution before the
Court below was that both the appellants i.e., AO-1 and AO-2
were public servants within the meaning of Section 2(c) of the
PC Act and the prosecution obtained a valid sanction to
prosecute them in terms of Section 19 of the PC Act for the
charges framed against them. Though the prosecution
examined PW.9, concerned Section Officer, to prove a valid
sanction against both the appellants and got marked
Exs.P-15, P-16 and P-17 - which is relating to AO-3, who
died during pendency of the Criminal Appeal but, it appears
from the judgment of the Court below that the appellants
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herein did not agitate about the validity of the sanction. Even
as evident from the judgment of the Court below, it appears
that both the appellants did not canvass any contention with
regard to the validity of the sanction even in the grounds of
Appeals before this Court. Learned counsel for the appellants
did not agitate anything about the validity of the sanction
proceedings. However, as these are the Criminal Appeals
against conviction and as the prosecution was bound to
prove a valid sanction, I would like to appreciate the evidence
on record.
14. PW.9, the Section Officer, having got authorization
under Ex.X-1 from the Deputy Secretary to Government,
deposed that on 08.08.2003, the DG, ACB sent a preliminary
report along with copy of FIR, Mediators Reports-I and II. On
12.02.2004, they received final report from the DG, ACB. The
then Assistant Section Officer put up the note file and from
him the file was circulated the SO, Deputy Secretary and
Principal Secretary and Minister for Revenue. After scrutiny
by the Law Department, the then Principal Secretary to Law
Department - Sri J.P. Murthy issued sanction orders after
duly satisfying with the material placed before him. Ex.P-15
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is the sanction order issued against Chavala Satyanarayana
(AO-2). Ex.P-16 is the sanction order issued against Talluri
Gilbert Subashan Kumar @ Kumar (AO-1) and Ex.P-17 is the
sanction order issued against Jukunta Narasimhulu (AO-3).
Exs.P-15 to P-17 bears the signatures of J.P. Murthy. So, the
prosecution before the Court below examined the person who
was acquainted with the signatures of the sanctioning
authority. As seen from Exs.P-15 and P-16, they clearly
disclose the application of mind by the sanctioning authority
with reference to the material sent by the DG, ACB. Mere
sending of draft sanction orders so as to suggest a proforma
to the sanctioning authority would not make Exs.P-15 and
P-16 as invalid.
15. Having regard to the above, I am of the view that the
prosecution before the Court below proved Exs.P-15 and P-16, the
original sanction orders against AO-2 and AO-1. PW.9
categorically explained the signatures of the sanctioning authority
and Exs.P-15 and P-16 discloses the application of the mind by
the Sanctioning Authority. Hence, I am of the considered view that
the prosecution proved a valid sanction in terms of Section 19 of
the PC Act to prosecute the AO-1 and AO-2, who are no other than
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the appellants herein, for the charges under Sections 7 and
13(1)(d) R/w. Section 13(2) of the PC Act. The point is answered
accordingly.
POINT Nos.2 to 4:
16. Sri P. Narasimha Rao, learned counsel for the appellant in
Criminal Appeal No.474 of 2015, would contend that in the report
lodged by PW.1 the allegation is that the present appellant
demanded bribe of Rs.1,000/- to do official favour. During the
course of trial, he turned hostile to the case of prosecution. He did
not depose that AO-1 demanded him to pay bribe of Rs.1,000/- to
do official favour. In fact, AO-1 duly attended the official favour
relating to PW.1. According to the evidence of PW.1, he did not
depose any demand against AO-1. Even as on the date of post trap,
his evidence is that when he approached AO-1 to enquire about the
Pattedar Passbooks, he asked him to meet AO-2. Later, AO-1 did
not know as to what happened. No tainted amount was recovered
from the possession of AO-1. There was no substantive evidence to
prove that AO-1 demanded bribe of Rs.1,000/- and reduced it to
Rs.600/- and, on further demand, accepted the same from PW.1.
The prosecution failed to prove the allegations of demand of bribe
by AO-1 from PW.1 and consequent acceptance of the bribe
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amount. AO-1 has nothing to do with AO-3, to whom complainant
was alleged to have handed over the amount. According to the case
of prosecution, PW.1 did not depose that he handed over the
amount to AO-3, who died. The amount was recovered from PW.2,
a constable who was on traffic duty. The learned Special Judge
read Ex.P-1 - report of PW.1 and 164 Cr.P.C statement in
substantive evidence which is quite irregular. Absolutely, there was
no legal admissible evidence before the Court below to prove the
charges against the appellant herein. The Court below on mere
assumptions and presumptions convicted and sentenced the
present appellant without any basis, whatsoever. The learned
Special Judge recorded an order of conviction as such the
Appellant herein is entitled for an acquittal. Learned counsel for
the appellant (AO-1) in support of his contentions relied upon the
decisions of the Hon‟ble Apex Court in State of Maharashtra v.
Dnyaneshwar Laxman Rao Wankhede1, State of Punjab v.
Madan Mohan Lal Verma2, Prabhat Kumar Gupta v. State of
Jharkhand and another3 and Satvir Singh v. State of Delhi4.
He would further rely upon a recent decision of the Hon‟ble Apex
1 (2009) 15 SCC 200
2 (2013) 14 SCC 153
3 (2014) 14 SCC 516
4 (2014) 13 SCC 143
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Court in Neeraj Dutta v. State (Government of NCT of Delhi)5,
presided over by a Constitution Bench. He would further submit
that the Court below also read post trap proceedings in substantive
evidence and when PW.1 did not adhere to the version written in
post trap proceedings, the post trap proceedings cannot be a basis
to sustain a conviction and, at any rate, there is no legal
admissible evidence in Criminal Appeal No.474 of 2015 as such the
Criminal Appeal is liable to be allowed.
17. Sri M.B. Thimma Reddy, learned counsel for the appellant in
Criminal Appeal No.497 of 2015, would contend that Ex.P-1 alleges
that AO-1 demanded complainant to pay bribe of Rs.1,000/- and
later reduced it to Rs.600/-. There is no whisper about the name of
AO-2 in the report. At the time of post trap only the name of AO-2
was brought into picture. Having alleged the allegation of demand
against AO-1 the complainant gave a go bye to the said version at
the time of post trap as well as during the course of trial and
brought into picture the name of AO-2. According to the post trap
version, when PW.1 went to AO-2 at the instructions of AO-1, AO-2
questioned him as to whether any of the staff members demanded
bribe and when he replied in positive, AO-2 called AO-3 and asked
5 (2022) SCC OnLine SC 1724
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him to take the amount from PW.1. When it comes to evidence,
PW.1 did not support the case of prosecution. He deposed that just
AO-2 asked him as to whether any staff members demanded the
bribe for which he replied that the Superintendent (not an accused
in these cases) demanded bribe and then AO-2 signed the pattedar
passbook and asked the Attender to make seals and then he (PW.1)
went to the seat of Superintendent and when the Superintendent
handed over the pattedar passbooks, he just kept the amount on
the table. So, basing on the theory of AO-3 in the post trap that
AO-2 asked him to take the amount from PW.1, the name of AO-2
was brought into picture. AO-3 died during the course of trial and
the case against him was abated. So, it is not a case where PW.1
deposed that AO-2 demanded him to pay the bribe. PW.1 is a un-
reliable witness whose evidence cannot be believed. He changed his
versions from time to time right from Ex.P-1 till he deposed the
facts before the Court below. The amount was not recovered from
the possession of AO-2. Even the amount was not recovered from
the possession of AO-3. It was recovered from a Constable who was
on traffic duty by then and the version of PW.2, the said Constable
is that AO-3 handed over the amount to him but he does not know
the purpose for which it was handed over. In the cross-
examination, PW.1 categorically deposed that AO-1 and AO-2 never
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demanded him to pay the bribe. So, absolutely there was no
evidence of demand of bribe against AO-2 and acceptance of the
same and the amount was not recovered from AO-2. The Court
below read the post trap proceedings in substantive evidence. The
Court below further read 164 Cr.P.C statement of the witness in
substantive evidence. Without there being any legal admissible
evidence, the Court below recorded an order of conviction basing
on the assumptions and presumptions. Section 20 of the PC Act
has no application because the amount was not recovered from the
possession of AO-2. Mere evidence of PW.1 that when he met AO-1,
he asked him to go to AO-2 cannot be a circumstance to prove the
guilt against the accused. The evidence of PW.1 that AO-2 asked
him as to whether anybody demanded him the bribe is nothing but
false. On the other hand, AO-2 discharged his duty by signing the
pattedar passbooks and handed over to the Attender. Even PW.1
failed to put forth his evidence in tune with the post trap
proceedings. At any rate, the judgment of the Court below is not
sustainable under law and facts and the AO-2 is liable to be
acquitted.
18. Learned counsel for the appellant (AO-2) would rely upon
the decisions of the Hon‟ble Apex Court in K. Shanthamma v.
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State of Telangana6, N. Sunkanna v. State of Andhra
Pradesh7 and B. Jayaraj v. State of Andhra Pradesh8. Learned
counsel would further rely upon a decision of the Hon‟ble Apex
Court in Neeraj Dutta (5th supra).
19. Smt. A. Gayathri Reddy, learned Standing Counsel-cum-
Special Public Prosecutor for ACB, appearing for the respondent-
State, would contend that, admittedly, it is a case where PW.1
turned hostile to the case of the prosecution, for obvious reasons
best known to him. The Court below ordered prosecution against
him for perjury and directed the concerned Chief Administrative
Officer to make a complaint against PW.1 and PW.10 - mother of
PW.1. She would further contend that Ex.P-1 discloses the
allegation of demand of bribe as against the appellant in Criminal
Appeal No.474 of 2015. PW.1 deposed that during the post trap
when he approached AO-1, he directed him to meet AO-2, AO-1
has no right to direct PW.1 to approach AO-2. In fact, it is for
AO-1 to take necessary steps as regards the request of PW.1 and
PW.10 to issue pattedar passbooks. PW.1 turned hostile to the
case of prosecution deliberately by not speaking demand against
6 (2022) 4 SCC 574
7 (2016) 1 SCC 713
8 2014 (2) ALD (Crl.) 73 (SC)
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AO-1 and even he did not stick on to his version in the post trap
and even did not speak about the demand against AO-2 as
mentioned in the post trap. On the other hand, he deliberately
and falsely brought into picture the name of the Office
Superintendent in the office of MRO, Nallajerla i.e., PW.3 as the
person who demanded bribe, according to the version of AO-1. He
deposed as if AO-1 told to him that the Superintendent of the
Office is demanding the bribe. It is nothing but false. So, PW.1
turned hostile to the case of the prosecution being in collusive
course with the accused and brought into picture the name of
PW.3 as the person who demanded bribe according to AO-1 and
deposed the facts. The Court below by relying upon the decisions
and also the circumstantial evidence found favour with the case
of the prosecution. Though, amount was not recovered from the
possession of the appellants herein but it was recovered from
PW.2, to whom AO-3 (died) handed over the bribe amount.
According to AO-3, in the post trap he took the amount from
PW.1 on the instructions of AO-2. The circumstance that when
PW.1 approached AO-1, AO-1 asked him to meet AO-2 and when
PW.1 met AO-2, he asked him as to whether anybody demanded
bribe etc., goes to prove the case of the prosecution. The Court
below basing on the circumstantial evidence found favour with
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the case of the prosecution. Even according to the decision of the
Hon‟ble Apex Court in Neeraj Dutta (5th supra), the prosecution
need not prove the allegations of demand and acceptance of the
bribe by direct evidence and even those facts can be proved by
way of circumstantial evidence.
20. With the aforesaid submissions, learned Standing Counsel-
cum-Special Public Prosecutor for ACB, would further contend
that both the Appeals are liable to be dismissed. She would
further submit that the pendency of official favour in respect of
the work of PW.1 and PW.10 was not in dispute before the Court
below and it was categorically established by the prosecution.
21. In the light of the above, firstly, I would like to deal with as
to whether the official favour in respect of the work of PW.1 and
PW.10 was pending with the Accused Officers.
22. Coming to the evidence of PW.1, who is the de-facto
complainant, his evidence regarding the material aspects is that
he has land of an extent of Ac.2.43 cents in Nallajerla village.
There was also an extent of Ac.2.21 cents of land in the name of
his mother. He wanted to dig a bore well in the said fields. So, he
approached the MRO for pattedar passbooks of his land and the
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land of his mother. He submitted claim forms of both of them.
When he met the MRO, he signed on both the forms and sent to
Revenue Inspector. Witness identified AO-1 and AO-2 as Revenue
Inspector and Mandal Revenue Officer. According to him, he filed
application on 05.07.2003 before MRO to issue pattedar
passbooks and title deeds. Ex.P-4 is the form along with the sale
deed. Ex.P-4 bears his signature. Ex.P-5 is the application of his
mother. During the course of cross-examination, the factum of
submission of applications by PW.1 of him and his mother before
the MRO and later entrusting of the said work to AO-1 is not in
dispute.
23. Coming to the evidence of PW.3 - G. Gandhi Babu, he
deposed that he was retired Deputy Tahsildar and prior to that
worked as Office Superintendent in the office of MRO. He deposed
that one Chinta Srikrishna Chaitanya, resident of Nallajerla
Village submitted two applications on his behalf and on behalf of
his mother with a request to issue pattedar passbooks and title
deeds on 05.07.2002 or 2003. The same came before him on
07.07.2003 and 22.07.2003 respectively through the Revenue
Inspector - TGS Kumar. On the next day, he verified, signed and
sent to MRO. According to the records, mother of PW.1 possessed
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Ac.2.00 cents and odd land. He further deposed on 22.07.2003,
he verified the application of Ch. Srikrishna Chaitanya and sent
to MRO. Ch. Srikrishna Chaitanya possessed Ac.2.43 cents in
Nallajerla Village. Exs.P-7 to P-10 (already marked) are the
relevant documents.
24. Coming to the evidence of PW.4, the then Sub-Registrar,
Ananthapalli, West Godavari District, he testified the fact that
Chinta Srikrishna Chaitanya i.e., PW.1 possessed Ac.2.43 cents of
land in Nallajerla Village and Smt. Chinta Satyavathi, mother of
PW.1, had possessed an extent of Ac.2.21 cents. There was no
cross-examination for both the Accused Officers in this regard.
25. Coming to the evidence of PW.6, who was examined by the
prosecution relating to pendency of official favour and to prove the
procedural aspects, his evidence is that in order to issue pattedar
passbooks, the applications submitted by the applicants have to
be enquired by the Revene Inspector and on submission of his
report, Office Superintendent would process the files to MRO and
the MRO will issue pattedar passbooks to the applicants. In
respect of the title deeds, they will be forwarded to RDO by the
MRO. After the signature of RDO, the title deeds will be issued to
the concerned applicants through MRO.
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26. According to the evidence of PW.8, the mahazar witness to
the pre trap and post trap proceedings, he deposed that during
the course of post trap, the complainant handed over to the DSP
pattedar passbooks and title deeds belonging to him and his
mother stating that those were issued by the MRO. So, the
signature of AO-2 during the post trap as regards the above
documents is not in dispute. There is no dispute that PW.1 came
into custody of the pattedar passbooks and revene title deeds
signed by the MRO during the course of post trap.
27. PW.10 is no other than the mother of PW.1 and she did not
support the case of prosecution. According to her, she did not
know whether she purchased Ac.2.21 cents of land in her favour
and her son purchased Ac.2.43 cents. Though she did not
support the case of prosecution, there is no dispute that an extent
of Ac.2.21 cents was standing in her name by virtue of the
evidence of PW.1. Having regard to the above, absolutely, there is
no dispute in respect of the application of PW.10 pending before
AO-1 and AO-2 as on the date of trap.
28. PW.11, the Trap Laying Officer, deposed that during the
post trap proceedings, he obtained the pattedar passbook and
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revenue title deed which he came into possession from AO-2
during the post trap. Even these facts are not in dispute.
29. Having regard to the above, this Court is of the considered
view that insofar as the official favour of PW.1 and PW.10 is
concerned, it was pending before AO-1 and AO-2 prior to the date
of trap and as on the date of trap and the prosecution before the
Court below categorically established the same.
30. Now, another crucial aspect that has to be seen here is as
to whether the prosecution before the Court below proved that
AO-1 demanded PW.1 to pay the bribe of Rs.1,000/- and later
reduced to Rs.600/- and that both the Accused Officers No.1 and
2 during the post trap demanded PW.1 to pay the bribe and
accepted the same for doing official favour.
31. Admittedly, it is a case where the complainant did not
support the case of the prosecution. There is no dispute that the
name of AO-2 was not there in the report lodged by PW.1 i.e.,
Ex.P-1. There is also no dispute that PW.1 during the course of
trial did not depose that AO-1 demanded him to pay the bribe in
the manner as alleged in Ex.P-1 or in the manner as alleged in
the post trap proceedings. So, it is a case where the complainant
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alleged something in Ex.P-1 and during the post trap the names
of AO-2 and AO-3 were brought into picture and further during
the course of trial, he turned hostile to the case of the
prosecution. So, what was the case of the prosecution in the
report alleged by PW.1 and what was the case of prosecution
during the post trap and what was the evidence let in by the
prosecution during the course of trial and as to whether there was
any legally admissible evidence or whether there were any chain
of circumstances to prove the guilt against the accused, it
becomes absolutely necessary to look into the case of the
prosecution right from Ex.P-1. Without referring here the case of
the prosecution, as above, appreciation of evidence cannot be
done in an effective manner.
32. As seen from Ex.P-1, the substance of the allegations is
that PW.1 has an extent of Ac.2.43 cents having purchased in the
year 2000 from Rayudu Dharma Rao, native of his village. He also
purchased an extent of Ac.2.21 cents from Chundru Gandhi in
the name of his mother viz., Chinta Satyavathi in the year 2001.
He wanted to dig a bore well in the said lands and that is why he
approached the MRO requesting to issue pattedar passbooks so
as to enable him to dig bore well. About 25 days prior to Ex.P-1
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he submitted claim forms with enclosures of land documents to
MRO - Satyanarayana, MRO - Satyanarayana handed over the
same to Revenue Inspector. Then, he approached the Revenue
Inspector and requested him to issue pattedar passbooks for
which he demanded bribe of Rs.1,000/-. Since then, though he
approached him several times and asked him to process his
request. He was demanding bribe and ultimately he demanded
that for each pattedar passbook he needs Rs.500/-. When he
approached MRO with a request to issue pattedar passbooks, he
informed that he will look after the same once the Revenue
Inspector processed the same. Ultimately on 19.07.2003, when he
approached the Revenue Inspector - Kumar in MRO Office, he
demanded bribe of Rs.600/- at least and he promised to pay the
amount within two days.
33. As seen from Ex.P-1, as referred to above, there is no
allegation insofar as AO-2 is concerned. So, the complainant
raised a direct allegation against AO-1 as if he demanded the
bribe of Rs.1,000/- i.e., for each pattedar passbook and ultimately
on 19.07.2003 asked him to pay at least Rs.600/- towards bribe.
This is the sum and substance of the allegation. Even the FIR was
registered as against AO-1 only.
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34. There is no denial of the fact that by virtue of the events
that were alleged to have been happened during the post trap, the
name of AO-2 and further the name of AO-3, who died during the
course of trial, were brought into picture.
35. Now, it is pertinent to look into the chronological events
that were alleged to have been happened during the post trap.
36. According to Ex.P-27, the post trap proceedings, the DSP,
ACB along with the mediators and trap party members at about
07:55 p.m. received pre arranged signal from the complainant and
then they all rushed to the office of MRO. Then the complainant
informed to DSP, ACB that as per the instructions of MRO, the
Mandal Deputy Surveyor - Narasimhulu accepted the bribe
amount from the complainant by stretching a paper and folded
wad of bribe amount into it and only thereafter the MRO -
Satyanarayana signed on the pattedar passbook related to him
and handed over the same to him for affixing the stamp
underneath his signature and also handed over the pattedar
passbook and title deeds of his mother for affixing stamps and
seals also. MRO called one of the Attenders and instructed him to
affix seal and stamps and in the meantime, Surveyor -
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Narasimhulu who received the bribe amount went away on his
motorbike.
37. Further allegation is that the then DSP, ACB instructed the
complainant to wait outside till he was called. Then, the DSP,
ACB entered into office room of MRO along with the trap party
and ascertained his identity and got prepared sodium carbonate
solution into two separate glass tumblers and requested the MRO
- Ch. Satyanarayana to rinse his both hand fingers and when he
did so, there was no change in the colour. So, according to
Ex.P-27, the chemical test conducted to both hand fingers of
AO-2 yielded negative result.
38. It further alleges that the DSP, ACB asked the MRO as to
what was happened prior to the arrival of ACB trap party and he
disclosed that at 08:00 p.m. on 22.07.2003 one person belonging
to Nallajerla village approached him to issue pattedar passbook
and then he signed on the passbook and issued to him and after
some time the ACB officials came to him and asked about the
Surveyor on which he replied that Surveyor went out. The so
called version of AO-2 before the DSP, ACB is as if he duly signed
the pattedar passbook.
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39. Ex.P-27 further alleges that the then DSP, ACB instructed
U.V.Ramesh Babu, Inspector ACB, to trace out the Mandal
Deputy Surveyor - Narasimhulu with the help of the Deputy
Mandal Officer - Gandhi Babu and one of the mediators T.V.S.S.
Nagendra Rao and Police Constable.
40. It further alleges that the then DSP, ACP requested the
MRO to wait in his office room i.e., staff room of MRO and
introduced himself and after ascertaining his identity conducted
chemical test to both hand fingers of AO-1 and it yielded negative
result. So, the prosecution alleges that insofar as the chemical
test against AO-1 is concerned, it yielded negative result. It
further alleges that when the DSP, ACB asked him as to what
happened, he replied that about 16 days ago the complainant
approached him for issuance of pattedar passbooks and title
deeds along with the claim application forms for processing same
along with the initials of MRO and the complainant used to
periodically meet him for getting issuance of pattedar passbooks
and title deeds. While so on 22.07.2003 at about 06:30 p.m. when
he was sitting with the Superintendent in his room, the
complainant approached him for pattedar passbooks and then he
instructed the complainant to meet MRO by accompanying up to
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the entrance room of the MRO. Thereafter, he was engaged in his
work. After some time, the Superintendent-cum-Deputy MRO -
Gandhi Babu forwarded the pattadar passbooks and title deeds
on to the table of MRO for his signatures. It runs that AO-1
denied any demand of amount from the complainant. It further
alleges that AO-1 had given his written explanation to the DSP,
ACP to that effect. Ex.P-27 further alleges that in the meantime
Inspector U.V. Ramesh Babu, entered into the office room of MRO
along with Mandal Deputy Surveyor and Police Constable and
ACB, Inspector claimed that the Mandal Deputy Surveyor
informed him that at the instructions of MRO, he took the
amount from PW.1 into a folded paper and after that he handed
over the amount to a traffic constable. The sodium carbonate
solution said to have been conducted to both hand fingers of AO-3
yielded negative result. AO-3 was alleged to have put forth a
version before DSP, ACB that on 22.07.2003 evening at about
07:10 p.m. the MRO asked him to come to office room. Then, he
went into the room of MRO with a view to take permission but by
then Chinta Srikrishna Chaitanya was physically present and he
requested MRO to sign on the pattedar passbooks and MRO
replied that he will sign and asked the complainant as to whether
the Revenue Inspector or Superintendent or any one of them
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asked any amount and the complainant replied that the Revenue
Inspector demand the amount and then MRO asked the
complainant as to whether he brought the same for which he
replied positively and then MRO asked him (AO-3) to receive the
amount from the complainant and MRO stated that he will receive
his amount from him tomorrow. It further alleges that AO-3
stated that he received the amount through a paper and folded
the same with wad of currency notes and kept it in his right side
pant hip pocket after that he left the office along with Attender
and met the constable - Durga Rao and informed him that he will
attend the Court tomorrow and handed over the amount to
Constable - Durga Rao. The chemical test that was conducted to
the inner linings of the trouser pocket of AO-3 was said to be
positive.
41. The post trap narration is such that the names of AO-2 and
AO-3 were brought into picture during the post trap. AO-3 stated
to DSP, ACB when enquired that at the instructions of MRO, he
accepted the amount from PW.1 and later he handed over the
amount to traffic constable. Insofar as AO-1 is concerned, in the
post-trap the complainant did not allege anything that he
demanded any bribe amount. On the other hand, it is his version
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that AO-1 had asked him to meet AO-2. So, basing on the post
trap events the names of AO-2 and AO-3 were brought into
picture. The charges that are framed against AO-1 and AO-2 are
under Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act.
Section 7 deals with the demand of bribe. Section 13(1)(d) R/w.
Section 13(2) of the PC Act deals with criminal misconduct by a
public servant.
42. Now, it is a matter of appreciation to decide as to whether
the evidence of PW.1 proves the allegations of demand and
acceptance of bribe by AO-1 and AO-2 and further the act of
criminal misconduct alleged against them.
43. Now, coming to the evidence of PW.1, he supported the case
of prosecution with regard to pendency of official favour is
concerned. Regarding the allegations of demand of bribe, his
evidence is that when he met the Revenue Inspector - TGS Kumar
and asked him about the pattedar passbooks, three days after
MRO handed over the documents to RI, he was informed by AO-1
- TGS Kumar that the Office Superintendent demanded
Rs.1,000/- for issuance of pattedar passbook etc., Even after that
he used to meet him occasionally and he used to repeat the same.
When he again met the Revenue Inspector, he told him to meet
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Gandhi Babu. As Gandhi Babu demanded the bribe amount, he
refused to give any amount to Gandhi Babu - Superintendent. He
deposed that when he went to Revenue Inspector, he directed him
to meet Gandhi Babu and then Gandhi Babu demanded amount
and he refused to give and he returned the pattedar passbooks by
saying that if the amount is not paid, he will not comply the
request. There was a quarrel between him and the
Superintendent - Gandhi Babu. Then he went and met Bapiraju,
who told it is not possible for him to attend immediately and that
he would talk with the Superintendent later.
44. He further deposed that he saw the photo of Trinatha Rao,
the then DSP, ACB while he was going through the newspaper
and the boy who was adjacent to him told him to meet the ACB
Officials. So, he went to the Office DSP, ACB and presented Ex.P-
1 report. DSP, ACB asked him to come on the next day morning.
Accordingly he went to the DSP, ACB on the next day and he was
introduced with the mediators and they were also introduced to
him. He also told to the mediators that Superintendent also
demanded the bribe amount. He took the proposed bribe amount
of Rs.600/- to the Office of DSP, ACB during the pre trap
proceedings. One constable applied phenolphthalein powder to
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the currency notes and kept it in his left side shirt pocket. Pre
trap proceedings were concluded on that day. Later, the DSP,
ACB asked him to give the amount to anybody whoever asks for it
and he was also directed to give the pre-arranged signal after
accepting the said amount. When they reached the MRO office, he
came to know that MRO and the RI are not available since the
RDO, Eluru is on tour at Nallajerla Mandal. So, he came back and
informed the same to DSP, ACB. DSP, ACB asked him to stay
there up to 05:00 p.m. and thereafter he again went to the MRO
Office at about 07:30 p.m. RI came to the MRO office along with
MRO. RI went into the office of MRO. After RI came out from the
office of MRO, he met him and asked him about the pattedar
passbook. Then, he replied that he forwarded the pattedar
passbook to the MRO and asked him to meet the MRO. Then, he
met the MRO in his office chamber and asked him about the
pattedar passbook. Then the MRO signed on the pattedar
passbook and asked him whether any of his staff demanded the
amount. Then he replied that the Superintendent in the office
demanded an amount of Rs.600/- for issuance of pattedar
passbook. Then the MRO asked him to go to the Superintendent
and handed over the pattedar passbook to the Attender. Then the
Attender affixed seals on the passbooks and gave them to the
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Superintendent in the office of MRO. Superintendent gave the
pattedar passbooks and obtained his signature in the Register.
Then, he kept the tainted amount of Rs.600/- on a paper
available on the table of Superintendent, went outside and gave
prearranged signal by litting match stick as instructed by the
DSP, ACB. The trap party members rushed to the office of MRO.
He was asked to stay back by the DSP, ACB. He informed to the
DSP, ACB about the Narasimhulu (AO-3) - the Surveyor taking
the amount out. He again says that the Narasimhulu (AO-3) did
not take out the amount. After some time, he was called inside
and was asked to indicate about what had occurred from the
moment he departed from trap party and till giving pre-arranged
signal. The version of AO-3 was not confronted to him. He has no
idea as to whether DSP, ACB recorded his statement or not. Later,
he was asked to come to the DSP Office next day. It is true that he
gave statement before the learned Judicial First Class Magistrate,
Tadepalligudem. The signatures of the witness which are 7 in
number in his 164 Cr.P.C statement are marked as Ex.P-2. The
thumb impressions 7 in number which are beneath his
signatures in 164 Cr.P.C statement are marked as Ex.P-3. He is
having pattedar passbook of him and his father. DSP, ACB took
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the xerox copies of the pass books and handed over the originals
to him.
45. The learned Special Public Prosecutor got declared PW.1 as
hostile and during his cross-examination he deposed that he did
not remember whether he stated before the learned Magistrate as
in his 164 Cr.P.C statement. He denied the case of the
prosecution during cross-examination by the learned Special
Public Prosecutor.
46. The learned Special Public Prosecutor cross-examined PW.1
with reference to his report during pre trap and post-trap
proceedings and he denied the suggestions given by the learned
Special Public prosecutor. During the course of cross-examination
on behalf of AO-1 and AO-2, PW.1 deposed that he did not lodge
any report against the MRO. Superintendent of the MRO Office by
name Gandhi Babu handed over pass books to him on the date of
trap and obtained his signatures on the endorsement of Exs.P-4
and P-5. AO-1 and AO-2 i.e., the Revenue Inspector and Mandal
Revenue Officer did not demand any bribe amount from him and
he did not give any bribe to them. The MRO (AO-2) did not
instruct him to give any amount to AO-3 or to any other person.
On his submission of Ex.P-4 and P-5 to the MRO, he referred the
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same to MRO on 05.07.2003 as per Exs.P-4 and P-5 and Exs.P-6
to P-7. The RI submitted the same after verification and
preparation of passbooks to the Superintendent on 07.07.2003.
So, it is a case where PW.1 turned hostile to the case of
prosecution. He deviated from the contents of Ex.P-1 and further
deviated from the contents of post trap proceedings that were
recorded under Ex.P-27.
47. The prosecution examined PW.8, the mediator to the pre
trap and post trap proceedings and further PW.11 - the Trap
Laying Officer. According to their evidence, the versions of AOs-1
to AO-3 were recorded in the post trap proceedings. Prosecution
examined PW.2, the so called Constable to establish that AO-3
handed over a cover containing the tainted amount and he
deposed accordingly. Prosecution examined PW.3, the so called
Superintendent who testified about the ACB raid. He was hearsay
witness about version of AO-3 to PW.2 when PW.2 secured the
presence of AO-3. Now, this Court would like to deal with as to
whether the prosecution proved the essential ingredients of legal
principles covered under Sections 7 and 13(1)(d) R/w. Section
13(2) of the PC Act.
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48. Turning to the decision of the Hon‟ble Apex Court in
Dnyaneshwar Laxman Rao (1st supra), cited by learned counsel
for the appellant (AO-1), the learned Special Judge recorded an
order of conviction against the accused therein and on an Appeal
filed by him, the High Court of Maharashtra allowed the Appeal.
Felt aggrieved of it, the State of Maharashtra filed Criminal Appeal
before the Hon‟ble Apex Court. The Hon‟ble Apex Court dealing
with Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act,
categorically held that the demand of illegal gratification is a sine-
qua-non to constitute the offences to arrive at a conclusion as to
whether all the ingredients of the offences i.e., demand,
acceptance and recovery of the amount are satisfied are not. The
Court must take into consideration the facts and circumstances
brought on record in the entirety before the accused is called
upon to explain how the amount was found in his possession. The
foundational facts must be established by the prosecution for the
purpose of Section 20 of the PC Act. While holding so, the Hon‟ble
Apex Court found favour with the defence of the accused and
dismissed the Criminal Appeal filed by the State.
49. Turning to the decision of the Hon‟ble Apex Court in
Madan Mohan Lal Verma (2nd supra), the accused was convicted
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before the learned Special Judge. An Appeal was filed by the
accused before the High Court of State of Punjab and Appeal was
allowed. Felt aggrieved of the same, State of Punjab filed an
Appeal before the Hon‟ble Supreme Court, wherein the Hon‟ble
Supreme Court going through the essential ingredients of
Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act held that
the demand of illegal gratification is sine-qua-non for constituting
the offence. Mere recovery of tainted amount is not sufficient to
convict the accused when the substantive evidence in the case is
not reliable. It further held that while invoking Section 20 of the
PC 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. While holding so and looking into the essential
ingredients of Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC
Act, the Hon‟ble Apex Court found favour with the case of the
accused and dismissed the Appeal preferred by the State.
50. Turning to the decision of the Hon‟ble Apex Court in
Prabhat Kumar Gupta (3rd supra), the Hon‟ble Apex Court
reiterated that demand and acceptance of illegal gratification by
the public servants are sine-qua-non to constitute the offences
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under Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act
and further held that in the absence of evidence to establish the
voluntary acceptance of gratification by the accused, presumption
under Section 20 of the PC Act would not arise. It is a case where
the learned Special Judge acquitted the accused and on an
Appeal filed by the State, the High Court of Jharkhand allowed
the Appeal and subjected the accused to punishment under
Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act and when
the accused challenged the same, the Hon‟ble Apex Court allowed
the Appeal.
51. Turning to the decision of the Hon‟ble Apex Court in Satvir
Singh (4th supra), the same principles are reiterated by the Apex
Court. The Hon‟ble Apex Court especially dealing with Section 20
of the PC Act, categorically held that the demand, acceptance and
recovery of the illegal gratification from the appellant was not
proved as such there is no presumption under Section 20 of the
PC Act.
52. Turning to the decision of the Hon‟ble Apex Court in N.
Sunkanna (7th supra), the Hon‟ble Apex Court held that unless
there is proof of demand of illegal gratification, presumption
under Section 20 of the PC Act will not follow
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53. The Hon‟ble Apex Court in B. Jayaraj (8th supra) held that
mere possession and recovery of the tainted amount from the
accused without proof of demand is not sufficient for conviction
under Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act.
While holding so, the Hon‟ble Apex Court set-aside the judgment
of the High Court under which the High Court confirmed the
conviction and sentence awarded by the trial Court. The Hon‟ble
Apex Court further held that the presumption under Section 20 of
the PC Act cannot be drawn in the absence of proof of acceptance
of the bribe amount.
54. Turning to the decision of the Apex Court in K.
Shanthamma (6th supra), the Hon‟ble Apex Court looked into the
legal position with reference to the decision in P. Satyanarayana
Murthy v. District Inspector of Police, State of A.P. and
another9 and held that proof of demand of illegal gratification is
the gravamen of the offences under Sections 7 and 13(1)(d) R/w.
Section 13(2) of the PC Act and in the absence thereof, the charge
would fail.
55. It is to be noticed that the decision of the Hon‟ble Apex
Court in Neeraj Dutta (5th supra), is a constitutional Bench
9 (2015) 10 SCC 152
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decision, wherein the Hon‟ble Apex Court considered its various
earlier judgments especially whether there was any inconsistency
or conflict with reference to the judgments in B. Jayaraj (8th
supra) and P. Satyanarayana Murthy (9th supra). The
Constitutional Bench in Neeraj Dutta (5th supra), elaborately
considered its three earlier decisions and held that proof of
demand and acceptance of illegal gratification by a public servant
as a fact in issue by the prosecution is a sine-qua-non in order to
establish the guilt of the accused public servants under Sections
7 and 13(1)(d) R/w. Section 13(2) of the PC Act. The prosecution
can prove such an act either by direct evidence which can be in
the nature of oral or documentary evidence. The Hon‟ble Apex
Court further held therein that such an aspect can also be proved
by circumstantial evidence in the absence of direct oral or
documentary evidence. The Hon‟ble Apex Court further held
therein that the presumption of fact with regard to the demand
and acceptance or obtainment of illegal gratification may be made
by a Court of law by way of interference only when the
foundational facts have been proved by the relevant oral and
documentary evidence and not in the absence thereof. In the
event, the complainant turns hostile or has died or is unavailable
to let in his evidence during trial, demand of illegal gratification
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can be proved by letting in the evidence of any other witness.
Insofar as Section 7 of the PC Act is concerned, on proof of the
facts in issue, Section 20 of the PC Act mandates the Court to
raise a presumption that the illegal gratification was for the
purpose of a motive or reward. The Court has raised such a
presumption as a legal presumption or a presumption in law. Of
course, it is also subject to rebuttal. Ultimately, the Hon‟ble Apex
Court held therein that there is no conflict in the three judge
Bench decisions of the Court in B. Jayaraj and P.
Satyanarayana Murthy with the three judge Bench decision in
M. Narsinga Rao v. State of Andhra Pradesh10.
56. In the light of the above, it is very clear that for the charges
under Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act,
proof of demand of illegal gratification and acceptance thereof is a
sine-qua-non to establish the guilt against the accused. Further,
unless and until such foundational facts are proved, the benefit of
presumption under Section 20 of the PC Act is not available to the
case of prosecution. Even in the cases where the complainant
turned hostile or died or is unavailable, the fact in issue can be
proved by circumstantial evidence.
10 (2001) 1 SCC 691
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57. As already pointed out, the complainant turned hostile to
the case of prosecution. He did not stick on to the version
mentioned in Ex.P-1. He did not stick on to the version mentioned
in Ex.P-2 post trap proceedings. The amount is not recovered
from the possession of either of the appellants herein. However,
the Court below found favour with the case of prosecution. Now, it
is a matter of appreciation to decide as to whether the evidence on
record warrants the Court to hold that the prosecution
established the guilt against the accused with reference to the
charges beyond reasonable doubt.
58. Insofar as the allegations of demand of bribe against AO-1
is concerned, PW.1 in Ex.P-1 report alleged that AO-1 demanded
him several times to pay the bribe of Rs.1,000/- and later reduced
it to Rs.600/-. The said demands alleged to be made by AO-1
prior to the date of trap are not spoken to by PW.1. Even it is not
his evidence that on the date of trap, AO-1 demanded him to pay
the bribe. Even it is not the case of prosecution to that effect. But
the case is that when PW.1 approached him, he asked him to
meet AO-2. As evident from the cross-examination done by the
learned Special Public Prosecutor, after getting declared that
PW.1 turned hostile, even PW.1 denied the case of the prosecution
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with reference to his statement before the Investigating Officer
under Section 161 Cr.P.C as well as his statement under Section
164 Cr.P.C before the learned Magistrate and further his so called
statement in the post trap proceedings under Ex.P-27 before the
Trap Laying Officer in the presence of the mediators. So, at best,
Exs.P-1 and P-27 can only be used to contradict the testimony of
PW.1 by the learned Special Public Prosecutor. It is no doubt true
that his evidence has been negated by virtue of his earlier
statements in Ex.P-1 161 Cr.P.C statement and 164 Cr.P.C
statement and post trap proceedings. His hostility to the case of
prosecution is quietly evident but merely because he turned
hostile to the case of prosecution, there is no supposition that the
case of prosecution is true. Ex.P-1 - report, his statement under
Section 161 Cr.P.C as well as his statement under Section 164
Cr.P.C and further his statement in the post trap narration
cannot be read in substantive evidence.
59. Insofar as AO-2 is concerned, his name was brought into
picture in the post trap proceedings. As this Court already
pointed out, case of the prosecution with regard to Ex.P-27 is that
when PW.1 met AO-2 at the instructions of AO-1, AO-2 asked him
as to whether anybody demanded him for the bribe for which he
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replied that AO-1 demanded the bribe and AO-2 then called AO-3
and asked him (PW.1) to handover the amount to AO-3 and then
AO-3 went away. So, the prosecution alleged that AO-2 impliedly
demanded PW.1 and further asked him to pay the bribe amount
to AO-3. These aspects are not deposed by PW.1 in his evidence,
as pointed out.
60. On the other hand, he brought into picture the
Superintendent i.e., PW.3 as if he demanded the bribe amount
and AO-2 after signing passbooks asked him to meet the
Superintendent and then he went to Superintendent and collected
passbooks and later kept the amount on the table. Even it is not
his evidence that he handed over the tainted amount to AO-3. So,
absolutely, with regard to the allegations in the post trap that
AO-2 asked PW.1 to pay the demanded bribe amount to AO-3 is
not spoken to by PW.1. So, his narration in the post trap
proceedings can only be used to contradict the testimony of PW.1.
The tenor of his evidence goes to show that he is wholly unreliable
witness. Even he has gone to the extent of deposing that even in
the pre trap he disclosed the name of Superintendent as one of
the persons who demanded the bribe. If that be the case, the
name of the Superintendent would have been found place in
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Ex.P-1. So without there being any foundation in Ex.P-1, PW.1
deposed facts which are contrary to Ex.P-1 as well as Ex.P-27.
Either the statement under Ex.P-1 must have been false or the
statement under Ex.P-27 must have been false or the statement
before the Court in his evidence must have been false. There is no
denial of the fact that he gave 164 Cr.P.C statement before the
learned Magistrate. It is well settled that the statement under
Section 164 Cr.P.C cannot be read in substantive evidence. So,
his hostility to the case of prosecution is evident from the record.
So, on the ground that PW.1 turned hostile to the case of
prosecution even against AO-2 it does not lead to a conclusion
that the case of the prosecution is true.
61. Admittedly, it is a case where the prosecution alleged that
AO-3, after collecting the bribe amount from PW.1, left out the
office and handed over the amount to PW.2, traffic constable. The
evidence of PW.2 establishes the fact that AO-3 handed over the
cover containing the money to him with a request to keep it and
that he would secure the same on the next day when he attends
the Court pertaining to a criminal case.
62. PW.12, the Inspector of Police, ACB testified the fact that at
the instructions of DSP, ACB he secured the presence of AO-3
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and brought before the Trap Laying Officer. According to the
evidence of PW.3, the Superintendent, AO-3 told to Inspector,
ACB that upon the instructions of AO-2 he collected the amount
from PW.1. Even PW.3 was not a witness to the presence of AO-3
in the chamber of AO-2 when AO-2 allegedly asked PW.1 to pay
the amount to AO-3. So, even his evidence is hearsay in nature.
Absolutely, it is a case where PW.1 appears to have given false
evidence before the learned Special Judge. Absolutely the facts
and circumstances are such that he is wholly un-reliable witness.
Having raised allegations against AO-1 in Ex.P-1, he did not
support the case of prosecution. Having raised allegations against
AO-2 in the post trap, he brought into picture the name of PW.3
as a person who demanded the bribe and destroyed the case of
the prosecution. So, insofar as the demand alleged against AO-1
and AO-2 is concerned, PW.1 did not support the case of the
prosecution. He is wholly unreliable witness. His evidence before
the Court below that AO-2 asked him as to whether anybody
demanded the bribe and then he told him that Superintendent
asked the bribe amount is not at all inspiring confidence. It is un-
safe to believe his evidence as if Superintendent demanded him to
pay the bribe. So, even it is not believable that AO-2 asked him as
to whether anybody demanded the bribe amount. In cross-
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examination, he totally destroyed the case of the prosecution.
According to him, AO-1 and AO-2 never demanded him any bribe.
63. It is a case where the disputed amount was not recovered
from the possession of AO-1 and AO-2. Even, none of the
witnesses testified that AO-3 was physically present when AO-2
signed the pattedar passbooks of PW.1. However, the learned
Special Judge found favour with the case of the prosecution.
64. Now, this Court has to see as to what was the basis for the
learned Special Judge to convict the accused by holding that the
evidence on record proves the charges against them. The learned
Special Judge at Para Nos.20, 21 and 22 of the judgment
discussed as to how PW.1 did not support the case of prosecution
and how he deliberately introduced certain facts without any
basis from the records. At Para No.20 of the judgment while
holding that the statement under Section 164 Cr.P.C is not
substantive evidence but held that in view of Section 80 of the
Indian Evidence Act, 1872 (for short, „the Evidence Act‟), it shall
be presumed that it is duly recorded and it is a public document.
65. It is to be noticed that the presumption under Section 80 of
the Evidence Act runs as follows:
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"80. Presumption as to documents produced as record
of evidence:- Whenever any document is produced before
any Court, purporting to be a record or memorandum of
the evidence, or of any part of the evidence, given by a
witness in a judicial proceeding or before any officer
authorized by law to take such evidence or to be a
statement or confession by any prisoner or accused
person, taken in accordance with law, and purporting to
be signed by any Judge or Magistrate, or by any such
officer as aforesaid, the Court shall presume -
That the document is genuine; that any statement
as to the circumstances under which it was taken,
purporting to be made by the person signing it, are true,
and that such evidence, statement or confession was duly
taken."
66. A perusal of the above means that the said presumption is
applicable to a record or memorandum of evidence, or any part of
the evidence given by a witness in a judicial proceeding or in
respect of the statement or confession made by any prisoner or
accused. It is to be noticed that the statement of PW.1 under
Section 164 Cr.P.C cannot be brought under the purview of the
evidence though it was taken on oath. Even otherwise, the said
presumption is relating to the procedure that it is taken in
accordance with law and it is signed by the Magistrate or Judge
and that the document is genuine. So, the presumption under
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Section 80 of the Evidence Act cannot be made applicable to the
statement got recorded by the investigating agency under Section
164 Cr.P.C from a witness. Apart from this, Section 80 of the
Evidence Act does not mean that the statement under Section
164 Cr.P.C is to be read in substantive evidence. So, placing
reliance by the learned Special Judge under Section 80 of the
Evidence Act with reference to the statement of PW.1 under
Section 164 Cr.P.C is not proper.
67. The learned Special Judge at Para No.20 of the judgment
made an observation that the case of the prosecution is
corroborated by the version of PW.1 in 164 Cr.P.C statement and
his statement in the post trap. It is to be noticed that when PW.1
supported the case of prosecution, then only Ex.P-1 and Ex.P-27
can be used to corroborate his testimony. So, when he turned
hostile, the statement under Section 164 Cr.P.C and Ex.P-1 and
the version of PW.1 in Ex.P-27 cannot be used and they cannot be
read in substantive evidence to find favour with the case of the
prosecution. The observation made by the learned Special Judge
is nothing but erroneous, in my considered view.
68. The learned Special Judge at Para No.23 of the judgment
held that when PW.1 entered into the chamber of 2nd accused at
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07:55 p.m., he signed on the passbooks and his signing the
passbooks even during the odd time and even after busy tour is a
favourable circumstance in the case of the prosecution. It is very
difficult to support such an observation. There is no dispute that
AO-2 came back to his office late after attending an extensive tour
along with RDO. He cannot be found fault for signing pattedar
passbooks in odd hours. The observation made by the learned
Special Judge that signing of pattedar passbooks at 07:55 p.m. is
a favourable circumstance to the case of prosecution is not sound
in the circumstances of the case.
69. The learned Special Judge at Para No.25 of the judgment
commented that AO-1 and AO-2 did not question PW.1 in the
cross-examination as to what is the motive for lodging a false case
against them and even they did not advance any arguments
suggesting the reason for filing false case. The above said
observation made by the learned Special Judge is not tenable, in
my considered view. When the prosecution did not let in
substantive evidence in tune with Ex.P-1 and Ex.P-27 and when
PW.1 destroyed the case of the prosecution, the case of the
prosecution cannot be strengthened on the ground that AO-1 and
AO-2 did not question PW.1 as regards the false implication.
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70. The learned Special Judge at Para No.33 of the judgment
observed that the material goes to show that AO-1 and AO-2 did
not dispute about the presence of Narasimhulu (AO-3) in the
chamber of 2nd accused when PW.1 entered into the chamber. The
Court below made a further observation that presence of AO-3 in
the chamber and evidence of PW.3, PW.7 and PW.12 goes to show
that the 3rd accused was brought back with the tainted amount. It
is to be noticed that neither PW.1 nor PW.2 and PW.3 testified the
fact that AO-3 was present in the chamber of AO-2 when PW.1
entered into the chamber of AO-2 with regard to the issuance of
the passbooks. What PW.12 deposed is that he brought back
AO-3 on the instructions of the DSP, ACB after AO-3 went away.
None of these witnesses testified the presence of AO-3 in the
chamber of AO-2 when PW.1 entered into the chamber of AO-2.
So, when the prosecution witnesses did not testify about the
presence of AO-3 there was no question of AO-1 and AO-2
suggesting any theory that AO-3 was not present in the chamber
of AO-2. The observation of the learned Special Judge that all the
above goes to infer that 1st accused demanded the amount and
the 2nd accused demanded and accepted the amount through 3rd
accused is without any proper basis from the record. The learned
Special Judge placed reliance on the judgment in M. Narsinga
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Rao (10th supra). It is to be noticed that even as per the decision
of the Hon‟ble Apex Court in Neeraj Dutta (5th supra), when the
complainant turned hostile and died or is unavailable, the
prosecution can prove the case by relying upon the
circumstances. Absolutely here, there are no circumstances to
support the prosecution theory. PW.1 is wholly un-reliable
witness. There is no evidence that AO-1 and AO-2 demanded
PW.1 to pay the bribe. They did not deal with the tainted amount.
The purported version of AO-3 in post trap proceedings cannot be
read in substantive evidence. So, absolutely, the prosecution
miserably failed to establish any chain of circumstances to prove
the guilt against the accused. The learned Special Judge, without
there being convincing and legally admissible evidence found
guilty of AO-1 and AO-2 basing on assumptions and
presumptions.
71. In the light of the decision of the Hon‟ble Apex Court in
Neeraj Dutta (5th supra), it is the bounden duty of the
prosecution to prove the foundational facts. There is no evidence
that AO-1 and AO-2 dealt with the tainted amount. There is no
evidence that AO-2 directed AO-3 to take the amount from PW.1.
The demand and acceptance of bribe which are sine-qua-non to
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establish the charges in view of the principles laid down by the
Hon‟ble Apex Court, as above, are not proved by the prosecution
in the light of the evidence adduced. When that is the situation,
the judgment of the learned Special Judge in convicting the
accused basing on the assumptions and presumptions is not at
all sustainable under law and facts.
72. This Court would like to make it clear that the prosecution
moved an application to initiate perjury case against PW.1 before
the learned Special Judge and insofar as the observations made
by the learned Special Judge as against PW.1 is concerned they
are tenable. It is evident that PW.1 appears to have given false
evidence for which the learned Special Judge with proper reasons
ordered perjury against him and directed the Chief Administrative
Officer of the Court to lodge appropriate complaint before the III
Additional Chief Metropolitan Magistrate, Vijayawada. It appears
that there was no request from the prosecution to initiate perjury
case against PW.10, the mother of PW.1. As evident from the
judgment of the learned Special Judge, the learned Special Judge
ordered perjury case against PW.10 also basing on her 161 Cr.P.C
statement before the ACB, Inspector. It is not a statement signed
by her. According to the evidence of PW.1, he looked after entire
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affairs of submission of application of him and his mother to get
pattedar passbooks. PW.10 did not support the case of
prosecution. What she deposed is that she did not know anything
in the case but she was examined by ACB officials and her
statement was recorded by them. She denied in cross-
examination that she gave her statement as in Ex.P-28. Simply
because she deviated from Ex.P-28, which was not signed by her,
she cannot be prosecuted for the offence of perjury. Apart from
that, the learned Special Judge made an observation that even
she deposed that she is not aware whether she purchased lands
or she made application for obtaining pattedar passbooks. When
PW.1 categorically testified that he looked after everything on
behalf of his mother, it cannot be held that PW.10 purposefully
deposed false. The observations made by the learned Special
Judge that PW.10 deposed false cannot stand to any reason and
it is not a case where there is any material to launch prosecution
of perjury against PW.10.
73. In the light of the above reasons, I am of the considered
view that the prosecution before the Court below miserably failed
to prove the charges against AO-1 and AO-2 beyond reasonable
doubt and the judgment of the learned Special Judge is not at all
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sustainable under law and facts and the same is liable to be set-
aside. Apart from that, as PW.1 appears to have given false
evidence, the proceedings pending against PW.1 before the
competent Court of law shall continue and proceedings pending
against PW.10, shall stand dropped as there is no material to
prosecute her for the offence of perjury.
74. In the result, both the Criminal Appeals are allowed setting
aside the judgment, dated 15.05.2015, in C.C. No.1 of 2006 on
the file of the Court of Special Judge for SPE and ACB Cases-
cum-III Additional District and Sessions Judge, Vijayawada as
such both the appellants i.e., AO-1 and AO-2 shall stand
acquitted of the charges under Sections 7 and 13(1)(d) R/w.
Section 13(2) of the PC Act and they are entitled to claim refund of
the fine amount, if any paid, after Appeal time is over. Further,
the tainted amount of Rs.600/- (rupees six hundred only) shall be
confiscated to State and the material objects are ordered to be
destroyed after appeal time is over, if available before the Court
below.
75. The Registry is directed to take steps immediately under
Section 388 Cr.P.C to certify the judgment of this Court along with
the lower Court record, if any, to the learned Special Judge for
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SPE and ACB Cases-cum-III Additional District and Sessions
Judge, Vijayawada and further directed to mark a copy of this
judgment to the learned III Additional Chief Metropolitan
Magistrate, Vijayawada where the perjury complainant against
PW.1 and PW.10 is pending. On receipt of a copy of this judgment,
the learned III Additional Chief Metropolitan Magistrate,
Vijayawada shall proceed with the perjury case against PW.1 and
shall drop the perjury case against PW.10.
Consequently, Miscellaneous Applications pending, if any,
shall stand closed.
________________________________
JUSTICE A.V.RAVINDRA BABU
Date: 13.07.2023
DSH
