The State Of A.P., vs Sri Y.Hanumantha Rao,
2023 Latest Caselaw 1575 AP

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

             CRIMINAL APPEAL NO.1237 OF 2007

JUDGMENT:-

      This   Criminal   Appeal   is   filed   by   the   State,   being

represented by the Inspector of Police, Anti-Corruption Bureau

("A.C.B." for short), Guntur, challenging the judgment, dated

24.07.2006 in C.C.No.16 of 2001, on the file of Special Judge for

SPE & ACB Cases, Vijayawada ("Special Judge" for short), where

under the learned Special Judge, found the Accused Officer

("A.O" for short) therein not guilty of the charges under Sections

7 and 13(1)(d) r/w 13(2) of Prevention of Corruption Act, 1988

("P.C. Act" for short) and acquitted him under Section 248(1) of

the Code of Criminal Procedure ("Cr.P.C." for short).

      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 A.C.B., Guntur, filed a

charge sheet in Crime No.9/ACB-VJA/2000 of Guntur District

under Sections 7 and 13(2) r/w 13(1)(d) of the P.C. Act,

alleging in substance as follows:
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      (i) The A.O. worked as Station Fire Officer, Mangalagiri of

Guntur District from 07.07.1997 to 07.08.2000, as such, he is a

public servant within the meaning of Section 2(c) of P.C. Act.

      (ii) On 21.05.2000 when L.W.1-B. Ramesh Reddy was at

Hyderabad, he received information about the fire accident that

occurred in his godown. Immediately, he proceeded to Namburu

on 22.05.2000 evening. He already insured the stocks of 35,000

kgs., of NLS Bits variety of tobacco in his godown for Rs.6.00

lakhs with National Insurance Company. Hence, he reported the

matter to Pedakakani Police Station.

      (iii) About 10 days prior to giving the report to ACB, L.W.1

proceeded to the Fire Station, Mangalagiri and requested the

A.O. to issue fire certificate to get his claim processed, because

the fire services staff at Mangalagiri extinguished the fire on

21.05.2000. The A.O. demanded bribe of Rs.10,000/- to issue

the fire certificate. L.W.1 expressed his inability to pay the

demanded bribe and went back to his residence. Again on

03.07.2000 he went to the fire office, Mangalagiri and requested

him to issue fire certificate. The A.O. informed him that he

would not issue fire certificate unless he pay the bribe amount of

Rs.10,000/-. L.W.1 reluctantly agreed to pay the bribe amount

to the A.O. within two days and proceeded to the office of

L.W.7-District Inspector, ACB, Guntur and gave a written report.
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After making necessary enquiry about the A.O. and L.W.1,

L.W.8-D.S.P., ACB, Vijayawada Range, registered the report as

a case in Crime No.9/ACB-VJA/2000 on 04.07.2000 at 1-00

p.m., under Sections 7 of P.C. Act and took up investigation.

      (iv) On 04.07.2000 evening at 4-50 p.m., the A.O. was

trapped when he further demanded and accepted the bribe

amount of Rs.10,000/- as a gratification other than legal

remuneration from L.W.1 for doing official favour. The trap

amount was recovered at the instance of the A.O.       The serial

numbers of the tainted currency notes were even tallied with the

serial numbers that were mentioned in the pre-trap proceedings.

When both hand fingers of the A.O. were subjected to chemical

test, it yielded positive result. L.W.7 seized the tainted amount,

fire certificate and certain other relevant documents during post-

trap proceedings drafted from 5-45 p.m. to 8-15 p.m. on

04.07.2000 at the office of the A.O.

      (v) The Government of Andhra          Pradesh, being the

competent authority to remove the A.O., accorded sanction for

prosecution of the A.O. for the offence under Sections 7 and

13(1)(d)   r/w   13(2)   vide   G.O.Ms.No.137     Home     (SC-B)

Department, dated 16.06.2001. Hence, the charge sheet.

      4)    The learned Special Judge, took the cognizance

under the above provisions of law and after appearance of the
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A.O and after complying Section 207 of Cr.P.C., framed charges

under Section 7 and Section         13(1)(d) r/w 13(2) of P.C. Act

against the 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.W.1 to P.W.8 were examined and Ex.P.1 to

Ex.P.13 and Ex.X.1 were marked. Further the prosecution got

marked M.O.1 to M.O.6.

      6)    After closure of the evidence of the prosecution, the

A.O 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 stated that he did not

demand any bribe from P.W.1 and a false trap was laid against

him without conducting preliminary enquiry. On receipt of Ex.P.1

on 03.07.2000, he informed P.W.1 that he will issue the fire

certificate after due enquiries and on verification of the records,

but P.W.1 got agitated and insisted him for issuance of

certificate immediately for which he asked him to come on the

next day and collect the same. P.W.1 implicated him falsely as

he got angry for non-issuance of the fire certificate on

03.07.2000. According to P.W.1, Ex.P.2 was drafted as per the

dictation of ACB Inspector. On 04.07.2000 when P.W.1 came to

him for the fire certificate, he brought the file and gave the
                                    5


same to him after putting his signature. While he was busy in

preparing the certificate, P.W.1 planted the tainted amount

without his knowledge under a file on the table.           He neither

demanded nor accepted any bribe amount from P.W.1 on the

date of trap. Trap party rushed and constable caught hold of his

hands and conducted tests of his hands, after he was made to

pick up the tainted notes from the table which were under a file.

P.W.2        and   P.W.3   are   the   stock   witnesses    to   ACB.

Phenolphthalein powder might have stuck to his hands when he

exchanged papers with PW.1 or when he was made to pick up

notes lying on the table under a file. His actual version was not

incorporated in the mediatornama.

        7)     A.O. did not let in any defence evidence.

        8)     The learned Special Judge 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 Inspector

of Police, ACB, Rajahmundry Range, filed the present Criminal

Appeal, challenging an order of acquittal, through the Standing

Counsel for ACB and Special Public Prosecutor.

        9)     Insofar as the fact that the A.O. was public servant

within the meaning of Section 2(c) of the P.C. Act. This is not at
                                 6


all in dispute. Though there may be a dispute as to whether the

prosecution obtained a valid sanction during the course of trial,

but the learned Special Judge on analyzation of the evidence on

record and looking into Ex.P.12 and looking into the evidence of

P.W.6, made categorical findings that the A.O. was a public

servant within the meaning of Section 2(c) of the P.C. Act and

the prosecution obtained a valid sanction to prosecute him.

These findings of the learned Special Judge are not challenged

by the learned counsel for the respondent during course of

hearing of the appeal.

10) Now, this Court confined itself to the following points

for determination:

(1) Whether the prosecution before the trial Court proved that the official favour in respect of work of P.W.1 was pending with the A.O. prior to the date of trap and on the date of trap in the manner as alleged?

(2) Whether the prosecution before the Court below proved that prior to 03.07.2000, on 03.07.2000 and on the date of trap, the A.O. demanded P.W.1 to pay the bribe of Rs.10,000/- and on the date of trap obtained the same?

(3) Whether the prosecution has proved the charges framed against the A.O. beyond reasonable doubt?

(4) Whether there are any grounds to interfere with the judgment of acquittal recorded by the trial Court?

POINT NOS.1 TO 4:-

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

for ACB and Special Public Prosecutor, appearing for the

respondent/State, would contend that for obvious reasons,

P.W.1 twisted the facts during the course of evidence being own

over by the A.O. He did not speak about the allegations of

demand raised against the A.O. as projected in Ex.P.2. Even in

respect of the demand on the date of trap also, he did not

support the case of the prosecution. He totally deviated from the

case of the prosecution. He turned hostile to the case of the

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

prosecution, there is evidence of P.W.2 the mediator, P.W.3

another mediator and P.W.5 the trap laying officer to prove that

the amount was recovered from the possession of the A.O.

There was no dispute about the pendency of the official favour

of P.W.1 with that of the A.O. prior to the date of trap and on

the date of trap. When the amount was recovered from the

possession of the A.O. and when the official favour was not in

dispute, the learned Special Judge erroneously extended an

order of acquittal in favour of the A.O. The evidence on record

clearly proves the guilt against the A.O., as such, the criminal

appeal is liable to be allowed by convicting the A.O.

12) Sri V.V. Satish, learned counsel, representing the

learned counsel for the respondent, would contend that the

allegations in Ex.P.2 were that 10 days prior to 03.07.2000

P.W.1 approached the A.O. with a request to issue fire certificate

for which the A.O. demanded bribe of Rs.10,000/-. Ex.P.1

application was dated 03.07.2000. P.W.1 categorically admitted

in cross examination by the defence counsel that prior to Ex.P.1,

he did not give any application in writing. Even Ex.P.1 did not

disclose that prior to 03.07.2000, he approached the A.O. So,

the allegations relating to demand of bribe by the A.O. from

P.W.1 prior to 03.07.2000 proved to be false. Insofar as the

demand, dated 03.07.2000 is concerned, P.W.1 did not speak

anything except saying that when he insisted the A.O. to issue

fire certificate on 03.07.2000, the A.O. became angry. As the

A.O. became angry, P.W.1 filed a false report against the A.O.

under Ex.P.2. P.W.1 did not support the case of the prosecution.

The demand, dated 03.07.2000, was also not proved by the

prosecution. Relating to the alleged demand during post-trap on

04.07.2000, P.W.1 did not depose that the A.O. demanded him

to pay the bribe amount of Rs.10,000/-. On the other hand,

even according to him, he planted the amount when the A.O.

was attending some other work. Hence, relating to the demand

alleged against the A.O., there was no substantial evidence

before the Court below. Though the A.O. was not disputing the

pendency of the official favour, but he was not supposed to give

fire certificate, the moment when P.W.1 presented Ex.P.1 on

03.07.2000. The learned Special Judge rightly looked into all

these aspects and rightly ordered an order of an acquittal. The

amount was not recovered from the physical possessions of the

A.O. The amount was found under a paper on the table. As the

A.O. was doing work with the papers, the possibility that his

hands might have contacted with the Phenolphthalein powder

cannot be ruled out. The learned Special Judge rightly looked

into the facts and circumstances and ordered an order of

acquittal and there are no grounds to interfere with the

judgment of the learned Special Judge as such, the Criminal

Appeal is liable to be dismissed..

13) In support of his contentions, he would rely upon the

judgments of the Hon'ble Supreme Court in K. Shanthamma

vs. State of Telangana1 and N. Vijayakumar vs. State of

Tamil Nadu2.

14) Turning to the evidence of P.W.1, he deposed about

the fire accident in his tobacco godown in May, 2000 and his

(2022) 4 Supreme Court Cases 574

(2021) 3 Supreme Court Cases 687

coming to Namburu from Hyderabad and giving report to

Pedakakani Police Station and his claim on 23.05.2000 for

insurance and that insurance company asked him to furnish fire

certificate because Mangalagiri fire station extinguished the fire.

So, in that context, he deposed that he gave an application to

the fire officer requesting him to issue fire certificate. Ex.P.1 is

the application addressed to the fire officer on 03.07.2000. The

A.O. informed him that after due enquiry, it would be issued. 10

days prior to giving Ex.P.1 also he approached the A.O. for fire

certificate and at request of the A.O., he submitted Ex.P.1

application and then the A.O. became angry when he

approached him with Ex.P.4. Then, he approached the ACB and

gave report under Ex.P.2. He was asked by the Inspector, ACB

to come to his office on the next day i.e., on 04.07.2000 along

with bribe of Rs.10,000/-. He went there accordingly. The D.S.P.

introduced two mediators to him and he confirmed the contents

of his report on being asked by the mediators. C.I. gave cash of

Rs.10,000/- which was given by him to him to somebody and

somebody noted the serial numbers on a paper, but, he did not

remember. One of the constables applied Phenolphthalein

powder to the currency notes. Constable gave the currency

notes to him and asked him to keep the same in his shirt

pocket. Accordingly, he kept those currency notes in his empty

shirt pocket. D.S.P. asked him to give the tainted amount to the

A.O. on his further demand. D.S.P. explained the consequences

of the chemical test by way of demonstration. At 4-00 p.m., he,

D.S.P. and his staff and mediators went to Mangalagiri to the

vicinity of office of the A.O. A vehicle was stopped at a distance

of 50 yards to the office of the A.O. D.S.P. reiterated his earlier

instructions. He found the A.O. attending his duties. He wished

the A.O. He was asked by him to wait for some time. After 15

minutes, he was called. He enquired the A.O. about the fire

certificate. The A.O. brought the fire certificate and gave to him

after putting his signature. Then, he (P.W.1) kept the tainted

amount under a file on the table of the A.O. He did not observe

whether the A.O. observed keeping the tainted amount on his

table. He came out and informed to the constable that he kept

the amount on the table of the A.O. Trap party members went

into the office of the A.O. He waited outside. Subsequently, he

was not called by the trap party members. Later, trap party

members came out and asked him to go away. He was not

examined by DS.P. His statement under Section 164 of Cr.P.C.

was recorded by the Magistrate on 22.07.2000. The Special

Public Prosecutor got declared him as hostile and subjected him

to lengthy cross examination and during cross examination he

denied the case of the prosecution.

15) The defence counsel also cross examined P.W.1 and

he deposed that prior to Ex.P.1 he did not give any paper in

writing to the fire office. Ex.P.1 did not disclose that prior to

03.07.2000 he approached the office of the A.O. He did not

mention in Ex.P.2 that on demand made by the A.O. he

presented Ex.P.1. He scribed Ex.P.2 in ACB Office to the

dictation of Inspector, ACB. Prior to giving statement before the

Magistrate, ACB police gave him a paper in writing and asked

him to state before the Magistrate in tune of the written paper

and accordingly he stated so before the Magistrate.

16) Prosecution examined P.W.2 and P.W.3, the

mediators. They spoken about the pre-trap and post-trap

proceedings and also deviated from the contents of the post-

trap proceedings on certain aspects, as such, the prosecution

cross examined them and in cross examination they admitted

the contents of the pre-trap and posts-trap. They were also

subjected to cross examination by the defence counsel. P.W.5 is

the trap laying officer and his evidence is in tune with the things

narrated in pre-trap and post-trap proceedings. The prosecution

examined P.W.5 who completed the investigation and laid

charge sheet. Prosecution further examined P.W.6 to prove the

sanction as already pointed out. P.W.7 is the Inspector, ACB,

who assisted the trap laying officer in the investigation. To prove

the official favour, the prosecution examined P.W.8.

17) Firstly, I would like deal with as to the pendency of

the official favour of P.W.1 with the A.O. As evident from the

evidence of P.W.1, the allegations in Ex.P.2 that 10 days prior to

Ex.P.2, he met the A.O. with a request to issue fire certificate

proved to be incorrect. It was on 03.07.2000 for the first time,

he presented Ex.P.1 application. Ex.P.1 did not disclose that 10

days prior to it, he orally requested the A.O. to issue the fire

certificate. Even in Ex.P.2 it is not alleged that on the demand

made by the A.O. only, Ex.P.1 application was made on

03.07.2000. Hence, what the prosecution was able to prove that

for the first time on 03.07.2000 only, P.W.1 made such an

application and it was duly attended by the A.O. on the next day

on 04.07.2000. During post-trap according to the case of the

prosecution, the A.O. issued the fire certificate to P.W.1. It is

also seized during course of post-trap. Virtually, there is no

dispute that as on 03.07.2000 and 04.07.2000 alone the official

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

A.O. These facts are not in dispute.

18) Now, this Court has to see as to whether the

prosecution before the Court below proved that 10 days prior to

03.07.2000 and on 03.07.2000 the A.O. demanded P.W.1 to pay

bribe of Rs.10,000/- and further the A.O. demanded P.W.1 on

04.07.2000 the said bribe of Rs.10,000/- and in pursuance of

the demand, accepted the bribe from P.W.1.

19) As seen from the evidence of P.W.1, as this Court

already pointed out the allegations in Ex.P.2 that 10 days prior

to 03.07.2000, the A.O. demanded P.W.1 to pay the bribe

amount proved to be incorrect because for the first time on

03.07.2000 only, P.W.1 presented Ex.P.1 and it did not disclose

about the prior meeting with the A.O. On the basis of it, it can

safely be held that P.W.1 had no occasion whatsoever to meet

the A.O. prior to Ex.P.1. However, when it comes to the

evidence P.W.1, testified that 10 days prior to Ex.P.1, he

approached the A.O. where the A.O. asked him to make an

application. The above portion of the evidence of P.W.1 has no

support from Ex.P.1. Even otherwise, it is not the evidence of

P.W.1 that 10 days prior to Ex.P.1 when he happened to meet

the A.O., the A.O. demanded him bribe amount of Rs.10,000/-.

Virtually, insofar as the allegations that when P.W.1 met the

A.O. 10 days prior to Ex.P.1 with a request to issue fire

certificate, the A.O. demanded him to pay bribe of Rs.10,000/-

as alleged in Ex.P.2 remained a mere allegation without any

evidence. Even according to the evidence of P.W.1, one has to

obtain fire certificate with a specific request in writing. So, it is

not the case of the prosecution that prior to 03.07.2000 P.W.1

made an application like Ex.P.1. The case of the prosecution

must fall with regard to the allegations of demand of bribe prior

to 03.07.2000.

20) Coming to the allegation that when P.W.1 made

application under Ex.P.1 on 03.07.2000, the A.O. demanded him

to pay bribe of Rs.10,000/- it is not spoken to by P.W.1 in his

evidence. As pointed out what he deposed is that when he made

Ex.P.1 application with the A.O., the A.O. became angry, as

such, he approached the ACB and filed a report under Ex.P.2.

Therefore, he did not support the case of the prosecution. He

disowned even the contents of Ex.P.2 by deposing in cross

examination that he scribed Ex.P.2 in ACB office to the dictation

of ACB Inspector. The prosecution cross examined him and got

marked his Section 161 of Cr.P.C. statement and further

prosecution during the course of chief examination got marked

his signature under Ex.P.3 on Section 164 of Cr.P.C. statement.

When P.W.1 did not support the case of the prosecution, Ex.P.2

cannot be used to corroborate his testimony. Prosecution used

Ex.P.2 as well as Ex.P.3 to contradict his testimony. Ex.P.2, the

report of P.W.1, Ex.P.3 the signature on his Section 164 of

Cr.P.C. statement or Section 164 of Cr.P.C. statement of P.W.1

or the contents of Ex.P.5 Section 161 of Cr.P.C. statement of

P.W.1 cannot be read in substantive evidence. Hence, the

prosecution must fail with regard to the demand attributed

against the A.O. on 03.07.2000.

21) Now, this Court has to see as to whether the

prosecution before the Court below proved that on 04.07.2000

during post-trap the A.O. demanded P.W.1 to pay bribe of

Rs.10,000/- and on giving the amount by P.W.1 accepted the

same as illegal gratification to do official favour. In this regard,

as this Court already pointed out the evidence of P.W.1 did not

disclose that during the post-trap the A.O. demanded him to pay

bribe of Rs.10,000/- and on such demand he accepted the bribe

amount. Even in this regard also P.W.1 did not support the case

of the prosecution. He never spoken any demand against the

A.O. either prior to 03.07.2000 or 03.07.2000 or 04.07.2000 at

the time of post-trap. What he disclosed is that the A.O. brought

the file and given the certificate after putting the signature and

he (P.W.1) kept the tainted amount under a file on the table of

the A.O. and he did not observe whether the A.O. observed

keeping the tainted amount on his table. The prosecution got

declared him as hostile and during cross examination he denied

that he gave the amount to the A.O. on further demand only.

He totally denied the case of the prosecution and he deposed in

favour of the defence in cross examination that Ex.P.2 was

prepared to the dictation of ACB Inspector. So, absolutely, the

evidence of P.W.1 is of no use to the case of the prosecution.

22) The prosecution sought to prove the guilt against

the A.O. basing on the testimony of P.W.2 and P.W.3, the

mediators and P.W.5 the trap laying officer and P.W.7, the

Inspector, ACB, who assisted the trap laying officer in laying

trap. The evidence of P.W.2 is that he himself and L.W.3-

Narayana Prasad Nayak, who worked as D.C.T.O., acted as

mediators in ACB cases. On 03.07.2000 they attended before

D.S.P., ACB, who instructed to come on 04.07.2000 at 7-00

a.m. He deposed that D.S.P. gave Xerox copy of report Ex.P.2

and introduced P.W.1 and asked them to go through the

contents and they did it and P.W.1 confirmed the contents.

P.W.1 produced currency notes of Rs.10,000/- which were

applied with Phenolphthalein powder and constable at the

instance of D.S.P., kept the amount in a cover and handed over

to P.W.1 and instructed P.W.1 to give the tainted amount to the

person on his demand only and to relay a pre-arranged signal.

To that effect, pre-trap proceedings were concluded under

Ex.P.7. With regard to post-trap, he deposed that at 3-10 p.m.,

he, P.W.1 and another mediator and D.S.P. and staff proceeded

to the office of the A.O. D.S.P. reiterated the instructions to

P.W.1 again. As directed by the D.S.P., he followed P.W.1. They

both went to the office of the A.O. They were asked by the A.O.

to sit on chairs. P.W.1 asked the A.O. about the fire certificate.

The A.O. prepared certificate in their presence. The A.O. kept

the certificate in front of the table. The A.O. demanded the

amount to P.W.1. P.W.1 gave the amount to the A.O. The A.O.

gave the fire certificate to P.W.1. They came out from the office

of the A.O. and P.W.1 relayed pre-arranged signal. Trap party

rushed into the office of the A.O. He and P.W.1 followed them.

D.S.P. disclosed his identity to the A.O. and subjected chemical

test to both hand fingers which proved positive result. D.S.P.

seized cash of Rs.10,000/-. D.S.P. preserved the resultant

solutions. He did not observe whether D.S.P. called P.W.1 and

enquired him as to what happened and he did not observe

whether D.S.P. collected the fire certificate from P.W.1. The

events were recorded in the mahazar. D.S.P. drafted rough

sketch. Prosecution got declared him as hostile as he did not

speak certain events in accordance with the post-trap and when

he was subjected to cross examination by the learned Special

Public Prosecutor, he admitted the contents in the post-trap.

23) Another crucial thing is that P.W.2 was not a witness

to the events between the A.O. and P.W.1 during post-trap. It

is evident from pre-trap as well as post-trap. He admitted in

cross examination by the Special Public Prosecutor that he did

not accompany P.W.1 to proceed to the office of the A.O. Due to

lapse of time by mistake he deposed deviating from the contents

of Ex.P.7. It is clear that P.W.2, the mediator was not a witness

to the conversation between the A.O. and P.W.1, but, he

deposed as if he witnessed the events between the A.O. and

P.W.1.

24) As evidence of P.W.2 shows doubtful circumstances,

prosecution examined P.W.3 another mediator, ultimately he

also did not stick on to certain crucial aspects, as such, the

learned Special Public Prosecutor was constrained to cross

examine P.W.3 and ultimately, got answers in according with

the contents of Ex.P.7. Hence, it is sufficient here to refer the

substance of his evidence relating to the post-trap. So, his

evidence relating to post-trap is that P.W.1 proceeded to the

office of the A.O. at 4-40 p.m. during the post-trap and they and

other trap party members received the pre-arranged signal.

Then, they entered into the office of the A.O. and found the A.O.

and staff of D.S.P. disclosed their identity to the A.O. and

introduced them to the A.O. Staff of D.S.P. caught hold of the

A.O. Both hands of the A.O. on enquiry by the D.S.P. after the

chemical examination proved positive result. The A.O. showed

the tainted amount which was kept under a paper in front of his

table. D.S.P. seized the cash of Rs.10,000/-. M.O.3 is the cash.

D.S.P. did not collect the paper which came into contact with

tainted amount. The paper is in a newspaper.

25) The evidence of P.W.5, the trap laying officer, with

regard to the post-trap events regarding the manner in which

the tainted amount was recovered is that during post-trap they

received pre-arranged signal at 5-30 p.m., and they rushed into

the office of the A.O. and found the A.O. in seat attending work

and he introduced himself to the A.O. and trap party members

to the A.O. The A.O. confused and tried to rub his hands to

trouser. Then his both hand fingers were subjected to chemical

test, which yielded positive result. He asked the A.O. to produce

the bribe amount which was accepted from P.W.1. Then, he

removed a paper on his table and showed the amount. Then,

the amount was seized. The evidence of P.W.7, the Inspector,

ACB, is such that he assisted P.W.5 during pre-trap and post-

trap proceedings.

26) Therefore, by virtue of the evidence of P.W.2, P.W.3,

P.W.5 and P.W.7 what the prosecution was able to prove before

the Court below is that during post-trap the amount was

recovered from the table of the A.O. It is not the case of the

prosecution that the amount was recovered from the physical

possession of the A.O. As this Court already pointed out P.W.1

did not support the case of the prosecution. There is no

evidence that on demand from the A.O., P.W.1 paid the tainted

amount of Rs.10,000/- to the A.O. during post-trap proceedings.

The contention of the appellant is that as the amount was

recovered at the instance of the A.O., presumption under

Section 20 of the P.C. Act is to be drawn.

27) Now, this Court would like to make it clear that to

prove the guilt either under Section 7 of the P.C. Act relating to

demand and acceptance of bribe or under Section 13(1)(d) r/w

13(2) of the P.C. Act i.e., allegation of demand and obtaining

peculiar benefit on demand is the sine qua non which the

prosecution is bound to prove.

28) In K. Shanthamma's case (1 supra) the Hon'ble

Supreme Court held that the offence under Section 7 of the P.C.

Act relating to public servant taking bribe requires proof of

demand of illegal gratification and acceptance thereof. The

Hon'ble Supreme Court categorically held that proof of demand

of bribe by public servant and its acceptance by him both are

sine qua non for establishing the offence under Section 7 of the

P.C. Act. Even in N. Vijayakumar's case (2 supra) also the

Hon'ble Supreme Court dealt with the demand as contemplated

under Sections 7 and 13 (2) r/w 13(1)(d) of the P.C. Act and

held that mere recovery of tainted amount in the absence of any

proof of demand and acceptance cannot be taken as sufficient to

convict the A.O. Apart from this, in a recent Constitutional

Bench decision in Neeraj Dutta v. State (Government of NCT

of Delhi) 3 , the Hon'ble Supreme Court held that to draw a

presumption under Section 20 of the P.C. Act, the prosecution is

bound to prove the foundational facts of demand and

acceptance of bribe.

29) Turning to the case on hand, the foundational facts

are that 10 days prior to 03.07.2000 when P.W.1 approached

the A.O. with a request to issue fire certificate, he demanded

the bribe of Rs.10,000/- and that on 03.07.2000 when P.W.1

made Ex.P.1 application, he demanded bribe of Rs.10,000/- and

he further demanded bribe of Rs.10,000/- and he accepted the

same. Therefore, these are all the foundational facts which have

to be proved by the prosecution. As pointed out earlier,

prosecution did not prove those foundational facts. In the

decision as above, the Constitutional Bench, the Hon'ble

Supreme Court also dealt with certain situations as to the mode

of proof of demand and acceptance of bribe where the

complainant turned hostile or where the complainant was not

available or where the complainant died. In such scenario, the

Court can look into other circumstances to prove the guilt

against the A.O. Keeping in view the above, now I proceed to

3 (2022) SCC OnLine SC 1724

analyse as to whether there is any other evidence available on

record to prove the guilt against the A.O. It is to be noticed that

the solitary circumstances on which the prosecution sought to

prove the guilt after P.W.1 turned hostile to the case of the

prosecution is that the so-called recovery of the tainted amount.

30) Turning to the evidence of P.W.1, he categorically

testified that without any demand whatsoever he kept the

tainted amount under a file on the table of the A.O. and he did

not observe whether the A.O. observed the same or not. It is

the specific case of the prosecution as mentioned in the post-

trap proceedings that on seeing ACB party the A.O. started

rubbing his hands to the trouser and after interrogation by the

D.S.P. about the tainted amount, the A.O. told that the amount

was under a file and shown the amount. So, evidently, it is not

the case of the prosecution that the amount was recovered from

the physical possession of the A.O. It is the specific case of the

prosecution in the post-trap that when P.W.1 handed over the

amount to the A.O., the A.O. counted the same with his both

hands and kept the amount under the paper. It is to be noticed

that the general conduct of a person like the A.O. if he accepts

the bribe amount would be to conceal the same either in the

trouser pocket or in the shirt pocket. It is the case where the

prosecution did not allege that the amount was recovered either

from the trouser pocket of the A.O. or from the shirt pocket of

the A.O. When it is the case of the prosecution that the amount

was found under a paper, the investigating officer did not think

of to subject to conduct chemical test on the surface portion of

the paper or surface portion of the table to chemical

examination. He did not conduct any chemical test to the

trouser of the A.O. to prove the act of the A.O. that he was

rubbing his hands towards the trouser. If the prosecution was

able to prove that the A.O. tried to rub his hands to the trouser

with a guilty intention, it would have been a piece of valuable

evidence to prove the demand. On the other hand, the case is

that the amount was not recovered from the physical possession

of the A.O. and the amount was found on a table under a paper.

According to the evidence of P.W.1 without there being any

demand, he kept the amount under the paper on the table and

he did not observe whether the A.O. observed when he was

keeping the amount on the table. So, in the absence of proving

factual aspects that the amount was recovered from the physical

possession of the A.O., it is very difficult to say that the A.O.

demanded P.W.1 to pay bribe and consequently accepted it.

31) As seen from the defence of the A.O., his defence

before the Court below was twofold to explain as to how his both

hand fingers yielded positive result when he was subjected to

chemical examination. P.W.2 and P.W.3 deviating from the

contents of post-trap proceedings they deposed that after the

trap party rushed into the office of the A.O., constables caught

hold of the A.O. The act of P.W.2 and P.W.3 in giving such

evidence is without any basis from the post-trap. The

investigating officer had to blame himself to choose the persons

like P.W.2 and P.W.3 as trap mediators. Basing on this the A.O.

wanted to take an advantage that as his hands were caught hold

of the trap party, there was a possibility that Phenolphthalein

powder might have touched with his both hands. However, this

theory is not tenable in the absence of proving a fact that the

Constable who applied Phenolphthalein powder to the currency

notes in the pre-trap proceedings was also present during post-

trap proceedings. Another theory is that when he was dealing

with the papers relating to P.W.1 or other papers relating to

office work, he might have contacted with the surface of the

table where the amount was lying, as such, his both hand

fingers yielded positive result. Even according to the evidence of

trap laying officer when the trap party rushed into the office of

the A.O., the A.O. sat before the table and he was attending his

office work. So, the attending of office work by the A.O. was

with reference to the papers only. Hence, the A.O. was able to

show a probability that there was every possibility that his

hands might have contacted with Phenolphthalein substance

which may be on the table as the amount was lying on the table.

32) In the light of the above, this Court is of the

considered view that there was a possibility and probability for

the A.O. to come into contact with the Phenolphthalein

substance, as such, his hand fingers yielded positive result when

they were subjected to chemical test. In the light of the above,

the solitary circumstance of recovery of the amount from the

table of the A.O. is very weak in nature and it is unsafe to be

relied upon.

33) Having regard to the above, this Court is of the

considered view that the prosecution before the Court below

failed to prove the essential ingredients of Sections 7 and 13(2)

r/w 13(1)(d) of the P.C. Act and the prosecution relying upon

the other circumstances failed to prove the allegations of

demand and acceptance of bribe. In my considered view, the

learned Special Judge for SPE & ACB Cases, Vijayawada, rightly

appreciated the evidence on record and rightly extended an

order of acquittal in favour of the A.O.

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

view that absolutely, there are no grounds to interfere with the

judgment of acquittal. The learned Special Judge for SPE & ACB

Cases, Vijayawada, looking into the conduct of P.W.1 and with

cogent reasons ultimately ordered prosecution of the P.W.1 for

perjury which is not under challenge in this appeal. Hence,

appeal is liable to be dismissed.

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

36) The Registry is directed to send the copy of the

judgment to the Court below along with original records and

further the copy of the judgment to the concerned Judicial

Magistrate of First Class, where the perjury case against P.W.1

is pending, on or before 28.03.2023.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 21.03.2023.

PGR

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

CRL. APPEAL NO.1237 OF 2007

Date:21.03.2023

PGR