Andhra Pradesh High Court - Amravati
Pithani Chinna Veeraiah, ... vs Spl. P.P., Acb Spe, Hyd on 19 October, 2023
THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
CRIMINAL APPEAL No. 574 of 2016
AND
CRIMINAL APPEAL No.583 of 2016
COMMON JUDGMENT:
1. Both the appeals are arising out of the Judgment dated
20.06.2016 in C.C.54 of 2008 on the file of Special Judge for S.P.E.
and A.C.B cases-cum-III Additional District and Sessions Judge,
Vijayawada (for short, "the trial Court") convicting both the accused
for the offences under sections 7 and 13(2) r/w. Section 13(1)(d) of
the Prevention of Corruption Act, 1988 (for short, "P.C. Act") they
are disposed together by this common Judgment.
2. 1st accused in C.C. No.54 of 2008 filed Criminal Appeal
No.583 of 2016. The 2nd accused in C.C. No.54 of 2008 filed
Criminal Appeal No.574 of 2016.
3. A.1 was tried for the offence punishable under section 7 of
P.C. Act and sentenced to undergo Rigorous Imprisonment for one
(1) year and to pay fine of Rs.20,000/-, in default, to suffer Simple
Imprisonment for Six (6) months and he was further sentenced to
undergo Rigorous Imprisonment for two (2) years and to pay fine of
Rs.25,000/-, in default, to suffer Simple Imprisonment for six (6)
months for the offence punishable under Section 13(2) read with
Section 13(1)(d) of P.C. Act. The sentences imposed under both
counts were directed to be run concurrently.
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4. Further, A.2 was tried for the offence punishable under
Section 13(2) read with Section 13(1)(d) of the P.C. Act and
sentenced to undergo Rigorous Imprisonment for one (1) year and
to pay a fine of Rs.25,000/-, in default, to suffer Simple
Imprisonment for Six (6) months.
5. For the sake of convenience, the parties hereinafter will be
referred to as arrayed in the trial Court.
6. The substance of the Charges against the A.O.1 and A.O.2 is
that, on 25.01.2006 and 23.03.2006, A.O.1 demanded and
accepted a sum of Rs.2000/- as a bribe from one Rongala Surya
Rao, at his house, and handed over the same to A.O.2, as illegal
gratification other than legal remuneration, obtained the said
amount for pecuniary advantage, for doing the official favour for
not registering the criminal case and to drop further action against
the complainant.
7. The prosecution case, as elucidated in the written report-
Ex.P1, dt.23.03.2006 submitted by P.W.1, unfolds as follows:
(i) On 25.01.2006, Constable/A.O.2 informed P.W.1/
complainant that a report had been lodged against him by Social
Forest worker, T. Nageswara Rao (P.W.4), for setting fire to the
plants grown by Social Forest Department. A.O.2 directed P.W.1 to
meet the Sub-Inspector of Police (A.O.1); P.W.1 went to Yeleswaram
Police Station and met A.O.1, who asked P.W.1 for a bribe of
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Rs.3000/- to avoid registering a case against P.W.1; on
23.03.2006, A.O.1 asked P.W.1 to come to Police Station, and
demanded Rs.2,000/- which P.W.1 did not give; on the same day,
P.W.1 went to the A.C.B office in Rajahmundry and met the D.S.P
(P.W.11) at 1.30 p.m and reported the details to the D.S.P which
led to the submission of Ex.P1 report.
(ii) P.W.11-Deputy Superintendent of Police, A.C.B (Anti
Corruption Bureau), Rajahmundry Range, endorsed Ex.P1 report
to P.W.12-Range Inspector-II, A.C.B, Rajahmundry, for verification;
P.W.12 endorsed Ex.P1, after obtaining permission from D.G.,
A.C.B, P.W.11 registered a case in Crime No.3/RCT-RJY/2006
under Section 7, 13(2) r/w.13(1)(d) and 15 of P.C.Act, 1988 of
A.C.B, Rajahmundry Range and issued Ex.P10-F.I.R; on the
instructions from P.W.11, P.W.1 went to ACB DSP office on
24.03.2006 at 01.30 p.m. P.W.10-N.B.V Reddy and one G. Veera
Venkata Durga Vara Prasad came to A.C.B office on 24.03.2006 at
2.00 p.m as instructed by P.W.11. P.W.11 introduced the
mediators and staff to P.W.1 and vice versa and asked them to
verify the authenticity of Ex.P1 report; as per the instructions of
P.W.l1, P.W.1 handed over the proposed bribe amount of
Rs.2,000/- to mediator Durga Prasad; the mediators recorded the
serial numbers in a Mahazar and then the Constable/R. Veeraraju
applied phenolphthalein powder to the proposed bribe amount and
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kept it in P.W.1's shirt pocket; a chemical test was performed and
samples (M.Os.1 to 3) were collected; pre-trap proceedings were
documented in Ex.P11; the trap party along with P.W.1 and
mediators left the A.C.B office by 5.00 p.m and P.W1 was
instructed to pay the bribe amount only on demand and if
accepted, relay the same by way of a signal; P.W.1 reached the
house of A.O.1 and at about 8.15 p.m., P.W.1 provided the pre-
arranged signal to P.W.12; later they went to the house of A.O.1; a
person present at A.O.1's house, upon noticing their arrival, threw
some papers and currency notes from his shirt pocket into the
plants; P.W.11 conducted chemical test on the fingers of both
A.O.2/Constable and A.O.1/S.I; both yielded positive result, and
the solutions were collected, sealed and attested as M.Os.4 to 7.
(iii) P.W.11 inspected the scene of the offence and prepared
Ex.P12 rough sketch, and he then arrested the accused 1 and 2;
subsequently, P.W.12/Inspector of Police, took up further
investigation as instructed by D.G., A.C.B; after completing the
investigation, P.W.12 filed the charge-sheet.
8. Initially, the Special Court at Visakhapatnam took
cognizance of an offence under Section 7 and 13(2) r/w 13(1)(d) of
the P.C. Act; the case was numbered as C.C. No.15 of 2007.
Subsequently, as per the letter of the High Court in
ROC.No.1211/E-1/07 dated 08.07.2008 and as per
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G.O.Ms.No.103 dated 19.06.2008, the jurisdiction of Rajahmundry
A.C.B Range is withdrawn from the said Court and annexed to the
jurisdiction of Special Judge, A.C.B Court, Vijayawada. The entire
case record is transmitted to the trial Court and numbered C.C.
No.54/2008.
9. On the appearance of the Accused, copies of the documents,
as required under Section 207 Cr.P.C., were furnished, and later
on, Charges as referred to above, came to be framed, read over and
explained to them, to which they pleaded not guilty and claimed to
be tried.
10. In support of its case, the prosecution examined P.Ws.1 to
12 and got marked Ex.P1 to Ex.P18, apart from marking M.Os.1 to
M.O.9 and Ex.X1 was marked through the witness. After
completing the prosecution evidence, the Accused were examined
under Section 313 Cr.P.C., with reference to the incriminating
circumstances appearing against them in the evidence of
prosecution witnesses, which they denied. They examined D.Ws.1
to 4 and got marked Exs.D1 to D8 in support of their plea.
11. Relying upon the evidence of P.Ws.1 to 12 coupled with the
documents, the trial Court convicted both the accused as stated
supra. Challenging the same, both the appeals came to be filed.
12. Sri Mangena Sree Rama Rao and Sri A.V. Pardha Saradhi,
learned counsel for the Appellants/A.O.1 and A.O.2 in
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Crl.A.Nos.583 and 574 of 2016, respectively, contend that the
A.O.1/appellant has never demanded the illegal gratification from
the complainant (P.W.1) which fact is further substantiated by the
complainant's statement rendered before the learned trial Court;
the entire version of P.W.1 is inconsistent, unreliable and with full
of contradictions and discrepancies on material aspects. They
further contend that the complainant has not supported the
prosecution version in any manner; the trial Court has failed to
consider the essential facts revealed in the cross-examination of
P.W.1; the trial Court has been unable to appreciate both oral and
documentary evidence in proper perspective; the prosecution does
not prove the crucial part of the demand and acceptance, the
presumption under section 20 of the P.C. Act will not arise at all.
(b) The learned counsel have maintained that even
assuming without admitting that the recovery of the tainted notes
from the appellants had been established, sans the proof of
demand, which is a sine qua non for an offence both under
Sections 7 and 13 of the Act, the appellants' conviction as recorded
by the trial Court is on the face of the record unsustainable in law
and on facts.
13. Per contra, Smt. A. Gayathri Reddy, learned Standing
Counsel for ACB-cum-Special Public Prosecutor, for the
respondent, while supporting the impugned Judgment, argued the
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prosecution could be able to firmly prove the demand and
acceptance of the bribe by the Appellant with the help of P.W.1's
evidence and the corroboration offered by the oral evidence of
P.Ws.10, 11 and P.W.12 and also other documentary evidence. The
accused had accepted receiving the bribe amount, so the
presumption under section 20 of the P.C. Act is attracted. The
accused officers had failed to prove their case even by the
preponderance of probability. For that reason, the conviction
recorded by the learned Special Judge cannot be interfered with.
On the other hand, the appellants failed to offer a plausible
explanation. The witnesses examined by the prosecution's
testimonies have proved all the essential ingredients for bringing
home the charges framed against the accused beyond a shadow of
any reasonable doubt.
14. I have perused the material papers, the deposition of the
witnesses, and the trial Court's Judgment. I have given my
thoughtful consideration to the rival contentions made on behalf of
the parties. After hearing the learned counsel for the parties and
the case facts while adverting to the arguments so advanced, the
following question would arise for determination:
(1) Whether the prosecution proved beyond all
reasonable doubt the twin requirements of demand
and acceptance of bribe amount by the
appellants/accused No.1 and 2?
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(2) Is the Judgment of the trial Court factually and
legally sustainable in law?
15. It is a settled proposition of law that the prosecution has to
establish both the twin requirements of demand and acceptance,
which are sine qua non, to prove the offence under Sections 7 and
13(1)(d) of the Act. The Accused Officer accepted, obtained, or
agreed to accept or agreed to obtain illegal gratification other than
legal remuneration as a motive or reward for doing an official
favour. Whereas, to prove the charge under Section 13(1)(d) read
with 13(2) of the Act, the prosecution shall prove beyond
reasonable doubt that a public servant by corrupt or illegal means
or by abusing his position as a public servant obtained for himself
or any other person any valuable thing or taken advantage.
16. In Neeraj Dutta vs State (Government of N.C.T. Delhi)1,
the Hon'ble Constitution Bench answered the reference as follows:
In the absence of evidence of the complainant (direct/primary,
oral/documentary evidence), it is permissible to draw an
inferential deduction of culpability/guilt of a public servant
under Section 7 and Section 13(1)(d) read with Section 13(2) of
the Act based on other evidence adduced by the prosecution.
The Hon'ble Constitution Bench also observed the following:
88.1. (a) 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
servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
1
2023(4)
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88.2. (b) In order to bring home the guilt of the accused, the
prosecution has to first prove the demand of illegal gratification
and the subsequent acceptance as a matter of fact. This fact in
issue can be proved either by direct evidence, which can be in
the nature of oral evidence, or documentary evidence.
88.3. (c) Further, the fact in issue, namely, the proof of demand
and acceptance of illegal gratification, can also be proved by
circumstantial evidence in the absence of direct oral and
documentary evidence.
***********
88.5. (e) The presumption of fact with regard to the demand
and acceptance or obtainment of an illegal gratification may be
made by a court of law by way of an inference only when the
foundational facts have been proved by relevant oral and
documentary evidence and not in the absence thereof. On the
basis of the material on record, the Court has the discretion to
raise a presumption of fact while considering whether the fact of
demand has been proved by the prosecution or not. Of course, a
presumption of fact is subject to rebuttal by the accused and in
the absence of rebuttal, the presumption stands.
88.6. (f) In the event the complainant turns "hostile", or has died
or is unavailable to let in his evidence during the trial, the
demand of illegal gratification can be proved by letting in the
evidence of any other witness who can again let in evidence,
either orally or by documentary evidence or the prosecution can
prove the case by circumstantial evidence. The trial does not
abate, nor does it result in an order of acquittal of the accused
public servant.
88.7. (g) Insofar as Section 7 of the Act is concerned, on the
proof of the facts in issue, Section 20 mandates the Court to
raise a presumption that the illegal gratification was for the
purpose of a motive or reward as mentioned in the said Section.
The said presumption has to be raised by the Court as a legal
presumption or a presumption in law. Of course, the said
presumption is also subject to rebuttal. Section 20 does not
apply to Sections 13(1)(d)(i) and (ii) of the Act.
*********
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POINT Nos.1 & 2:
17. It is not in dispute that A.O.1 and A.O.2 were public
servants, within the meaning of section 2(c) of the P.C. Act, who
were drawing salary from the account of the Government; the
prosecution examined P.W.9 G.Devendara Rao, Section Officer,
Home Department, Government of A.P. Secretariat, Hyderabad. He
testified that he was authorized by the Principal Secretary to
Government, Home Department vide Ex.X.1 to give evidence before
the Court; on 22.04.2006, their office received a preliminary report
from the D.G., A.C.B along with copies of F.I.R. and mediators
report; subsequently, on 04.12.2006, their office received final
report along with a statement of witnesses and documents seized
during the investigation including explanations of A.Os. After
considering the material on record, the Government issued
sanction orders Exs.P.8 and P.9 to prosecute the A.Os before the
trial Court.
18. A perusal of the sanction proceedings (Exs.P8 and P.9)
shows that relevant material papers were placed before the
Sanctioning authority. As seen from Exs.P.8 and P.9, the
sanctioning authority also examined the entire material. It
concluded concerning prima facie evidence to prosecute the
accused persons by giving specific reasons. This Court is of the
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view that the prosecution proved a valid sanction to prosecute the
A.Os under section 19 of the P.C. Act for the charges framed.
19. To re-appreciate the entire evidence, it would be convenient
to refer to the brief statements of the prosecution witnesses, which
were recorded before the trial Court.
20. The evidence of P.W.1-R. Surya Rao shows that he is an Ex-
Serviceman and possesses Ac.2.00 of agricultural land in Eluru
Village; he raised a sugarcane crop on his land, and after cutting
the sugarcane crop, his workers set fire to the thrash; on
25.01.2006 Constable/Chinna of Yeleswaram Police Station came
to him and informed that Social Forest Worker T.Nageswara Rao
(P.W.4), lodged a report against him for setting fire to the plants
that are being grown by the Social Forest Department and directed
him to come to Police Station and meet S.I of Police-Goli Prakash
Babu (A.O.1); then he went to Police Station and met him; there
A.O.1 had shown the report (Ex.P.4) lodged by P.W.4 and informed
him that if he paid Rs.8000/- towards compensation, then he did
not register any case against him.
21. P.W.1's evidence further shows that on 12.03.2006, he met
the Deputy Superintendent of Police, Peddapuram (P.W.8) and
informed him about the harassment caused by A.O.1 for
unnecessary demand of amount; he expressed his inability and
unwillingly accepted to pay the said amount; on 23.03.2006, A.O.1
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demanded Rs.2,000/-; P.W.1 went to A.C.B office, Rajahmundry
and met the D.S.P. at 1.30 p.m. and informed about the facts and
presented Ex.P1 report.
22. The evidence of P.W.11-Y. Markandeyulu, Investigation
Officer, and P.W.12-P.J.Jayaraju, Inspector of Police, show that
P.W.11 endorsed Ex.P1 to P.W.12 for verification; P.W.12
conducted a discreet enquiry and on 24.03.2006 at about 1.30
p.m. P.W.12 submitted his report by way of endorsement on Ex.P1-
report. The P.W.11's evidence shows that after obtaining
permission from D.G., A.C.B, he registered a case in Cr. No.3/RCT-
RJY/2006 under Sections 7, 13(2) r/w. 13(1)(d) and 15 of P.C. Act;
on the requisition sent on 23.03.2006 to the Deputy Director,
Ground Water Department, Rajahmundry, the mediators/P.W.10
and L.W.10 came to their office on 24.03.2006 at 2.00 p.m.; they
all assembled at 2.30 p.m. in his office; he exhibited the copy of
F.I.R. (Ex.P10).
23. The evidence of P.W.1, P.W.10 (N.B.V. Reddy, Assistant
Geophysicist), and P.W.11 shows that on 24.03.2006, P.W.1 came
to D.S.P. office along with intended bribe amount of Rs.2000/-
where they introduced two Government Officials and other trap
party members; as per the instructions of D.S.P., P.W.1 handed
over the proposed bribe amount of Rs.2000/- in the denomination
of Rs.100/- to L.W.10-Durga Prasad, who noted the serial numbers
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of currency notes in the report prepared by the mediators; one
Constable kept the proposed bribe amount in his shirt pocket and
informed him not to touch the tainted amount until the A.O.1
further demands the bribe amount; P.W.1 was also informed to
give signal in the event of acceptance of bribe amount by the
accused; they all rinsed their respective hand fingers one by one in
chemical solution except the Constable who kept the proposed
bribe amount in his shirt pocket.
24. The P.W.10's evidence further shows that the D.S.P.
prepared S.C. solution in separate glass tumblers and dipped a
small piece of paper; on doing so, the solution remained the same,
then the samples of S.C., Phenolphthalein powder and cotton
pieces were collected separately kept in three covers affixed seals,
duly noting down the descriptive particulars of its contents; M.O.1
is the sample of S.C. Powder, and M.O.2 is the sample of
phenolphthalein powder and M.O.3 is the cotton piece collected
during pre-trap proceedings. P.W.11 conducted the chemical test
demonstration and explained the test's significance as narrated in
Ex.P11-mediators report and conducted the pre-trap proceedings
(Ex.P.11), which was concluded by 4.20 p.m.
25. Though P.Ws.1, 10 to 12 were cross-examined concerning
the pre-trap proceedings, nothing was elicited in their cross-
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examination to discredit their evidence. I see no reason to
disbelieve their evidence.
26. Coming to the post-trap proceedings, P.Ws.1, 10 to 12
testified that they left the D.S.P. office at 5.00 p.m. in two cars,
reached Yerravaram Junction at 7.00 p.m., thereby P.W.1
instructed to go to Yeleswaram on his scooter followed by the trap
party and came to Yeleswaram P.S. at 7.30 p.m.; P.W.1 stated that
on enquiry, A.O.1 was available in his house, he went to A.O.1's
house followed by trap party members at 8.00 p.m.; he found
A.O.1 and A.O.2 in the front room, and then A.O.1 questioned him
whether he brought the bribe amount, then he gave him the
tainted amount, later A.O.1 gave the amount to A.O.2 for counting;
accordingly, A.O.2 counted the same and P.W.1 came outside the
house, then P.W.1 gave the pre-arranged signal by wiping his face
with a handkerchief. It is the evidence of P.Ws 1, 10 to 12 that the
trap party members rushed to the house, and A.O.2 threw the
amount into the bushes on seeing the trap party; later, he was
examined by the D.S.P. and recorded his statement. P.W.1
statement, i.e., Ex.P.2 under section 164 of Cr. P.C. was recorded
by Additional Judicial First Class Magistrate, Peddapuram; Ex.P3
is the report given by P.W.1 to the D.S.P.
27. P.W.10's evidence further shows that having witnessed the
approach of Inspector and Constable the tall person disclosed his
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identity as Constable-1557 by name P.China Veeraiah (A.O.2)
rinsed his hand fingers separately in the above solution and on
doing so both the solutions turned into pink in colour; the other
person who was found wearing white shirt and lungy disclosed his
identity as Goli Prakash Babu (A.O.1); thereafter the hand fingers
were also subjected to chemical test and on doing so, the right
hand fingers of A.O.1 turned into light pink in colour; M.O.4 is the
resultant solution collected after right hand wash of A.O.1; ;M.O.5
is the resulting solution collected after left hand wash of A.O.1;
M.O.6 is the resultant solution collected after the right hand wash
of A.O.2 and M.O.7 is the resultant solution collected after left
hand wash of A.O.2; when questioned by the D.S.P., A.O.1 and
A.O.2 stated their version and the same was incorporated in Post
Trap proceedings; the 2nd mediator/Prasad collected the currency
notes which were thrown away by A.O.2 from the plants with the
help of torch light and on verification the total amount comes to
Rs.2000/- and the same were tallied with the currency notes
mentioned in pre-trap proceedings; thereafter, the D.S.P. (P.W.11)
examined the scene of offence and prepared the rough sketch
(Ex.P.12) of scene of crime; then the accused were arrested; Ex.P13
is the post trap proceedings scribed by mediator Durga Prasad;
Ex.P.14 is the F.I.R.; M.O.8 is the tainted amount of Rs.2000/-;
M.O.9 is the left over S.C. Powder.
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28. The prosecution examined P.W.2-N.Veera Swamy, in whose
house A.O.1 was residing as tenant at the relevant time of offence.
His evidence shows that while he was present at his house at
about 7.00 PM, A.O.1 along with A.O.2 came to his house; on
24.03.2006 at about 07.30 PM or 08.00 PM, P.W.1 came to the
house of A.O.1 and talked with him for some time. His evidence
supports the Prosecution's version to the extent that ACB officials
searched in the plants infront of his house with the help of light
provided by him, but nothing was recovered. As he did not support
the prosecution case, he was cross examined by learned P.P.
29. P.W.11's evidence shows that he arrested both the accused
on 25.03.2006 and recorded the statement of the complainant
under Section 164 of Cr.P.C. before the Judicial First Class
Magistrate, Peddapuram; on 01.05.2006, the further investigation
was handed over to the P.W.12-Jayaraju, Inspector of Police as per
the instructions of D.G., A.C.B
30. The evidence of P.Ws.1, 10, 11 and 12 establishes that on
standard procedures of chemical tests being conducted on the
spot, the colour of the currency notes, the hands of the appellants,
changed colour to pink. Their evidence shows that a post-trap
panchanama was executed wherein details of the execution of the
trap were recorded. All the material seized in the trap, including
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the chemicals, were collected for forensic examination, and further
necessary action was undertaken.
31. Now, it would be convenient to discuss the evidence of the
prosecution witnesses in order to conclude as to whether A.O.1
demanded a bribe amount or not.
32. As seen from P.W.1's evidence and Ex.P1 report, he was
called to the Police Station on 23.03.2006, and he approached
A.O.1-Prakash Babu, S.I. of Police. He demanded to pay Rs.3000/-
otherwise, he would register a case against him and directed him
to bring the amount the next day. It is the case of A.O.1 that he
was not present at the Police Station on 23.03.2006. In support of
his case, he examined D.W.3-K.Narasimha Murthy, A.S.I of Police.
He stated that on 23.03.2006 at 8.00 a.m., A.O.1 delivered charge
to him and left for Prathipadu to attend Court and came to Station
on 24.03.2006 at 6.00 a.m., after attending Court work and
visiting Peravaram, Siripuram and Yerravaram villages for checking
ex-convicts and took charge from him; again on 24.03.2006 at 6.30
a.m. A.O.1 delivered the charge to him and left for Kakinada to
attend a Crime Meeting with S.P.; Ex.D7 is the relevant page in the
General Diary; on 23.03.2006, P.W.1 did not come to the Police
Station; he knew that P.W.1 came to Police Station twice in the last
week of January 2006.
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33. No material is placed before the Court to show that Ex.D6
and Ex.D7 were fabricated. Ex.D6 and Ex.D7, improbablises the
presence of A.O.1 in the Police Station on 23.03.2006. In this
regard, P.W.1 stated in cross-examination that he met A.O.1 before
presenting the Ex.P.1 report to A.C.B officials, but he cannot say
the exact date when he met A.O.1 after the Ex.P.3 report. In Ex.P.2
sworn statement given under section 164 of Cr.P.C, also, P.W.1
has not stated that he met A.O.1 on 23.03.2006 and he demanded
a bribe of Rs.3,000/-. The Investigation Officer is supposed to have
collected the material to show the presence of A.O.1 at the Police
Station on 23.03.2006 as a serious attribution was made against
A.O.1 that on that particular day, he demanded P.W.1 to pay the
bribe, but the Investigation Officer has not collected documents.
P.W.11 also testified in the cross-examination that the General
Diary will be maintained in all Police Stations; it contains all
particulars including registration of crime; but he did not seize the
General Diary to show that the first accused was in the Police
Station on 23.03.2006; he also stated that he did not examine any
staff of Yeleswaram Police station to ascertain as to first accused
attended the Station on 23.03.2006; he did not collect any
documentary proof from P.W.8-J.S. Rama Rao, D.S.P. regarding
the attendance of 1st accused in the Yeleswaram Police Station on
23.03.2006. This Court finds no reason for DW.3 to fabricate
19 TMR,J
Crl.A.Nos.574 & 583 of 2016
Ex.D.6 and Ex.D.7 at the risk of his job. The material on record
probabilities that the version put forth by P.W.1 as contended in
Ex.P1 report that A.O.1 demanded him to pay a bribe amount of
Rs.3,000/- on 23.03.2006 is not established.
34. The P.W.1's evidence is inconsistent regarding the date on
which A.O.1 demanded a bribe. In his testimony, P.W.1 stated that
A.O.1 informed him on January 25, 2006, that he could avoid
facing legal proceedings if he paid compensation of Rs.8,000/- to
PW.4. However, in the written complaint (Ex.P1), it is mentioned
that A.O.1 demanded a bribe of Rs.3,000/- on the same date to
avoid registering a case against P.W.1. This inconsistency raises
doubts about the accuracy of the allegations made by P.W.1.
35. To prove the lodging of Ex.P4-report by P.W.4 regarding the
fire accident, the prosecution examined P.W.4, who deposed that
during January 2006, he was informed by one Suribabu that some
of the plants situated adjacent to the fields of P.W.1 were found
burnt due to setting fire to waste material in the sugarcane crop
raised in P.W.1's land. Then, he inspected the fields personally on
25.01.2006, and he reported the matter to the Sub-Inspector of
Police, Yeleswaram Police Station, vide Ex.P4. After giving the
Ex.P.4 report at the first instance, A.O.2 inspected the scene of
offence in his presence. The next day, A.O.1 also examined the
scene of offence in his presence.
20 TMR,J
Crl.A.Nos.574 & 583 of 2016
36. According to the P.W.4's evidence, the elders of Yeleswaram
named Veeramsetty, Vangala Satyanarayana and Kondala Rao
were present at the time of the visit of A.O.1 at the place of
occurrence. Before elders, he (P.W.4) represented that Rs.8,000/-
is required for plantation and growing of the plants. P.W.1 was also
present there; the elders at that time fixed Rs.3,000/- towards
compensation for the damaged plants. The elders advised P.W.1 to
pay Rs.3,000/- towards compensation, for which P.W.1 agreed to
pay Rs.3,000/- before the elders. The Sub-Inspector of the Police
directed P.W.1 and P.W.4 to come to the Police Station as the
matter was compromised; P.W.1 represented that he would pay
Rs.3,000/- within ten days as he did not have said amount.
37. The evidence of P.W.7 S.Venkata Kameswara Rao, Panchayat
Secretary, supports the fact that there was a fire accident in
P.W.1's sugarcane crop and the plants relating to the Forest
Department which were up to 2 or 3 feet were set on fire.
Additionally, P.W.5-K.Siva Kameswara Rao, who previously worked
as Forester in the Peddapuram Section and P.W.6
V.Satyanarayana, the Forest Ranger testified that there were plants
along the road margin between Yeleswaram and China
Sankarlapudi which were approximately 5 kilometres in length and
contained around a thousand plants. These witnesses deposed that
the incident of setting fire to the waste material in P.W.1's fields
21 TMR,J
Crl.A.Nos.574 & 583 of 2016
and the burning of plaints adjacent to his fields does not come
under the jurisdiction or responsibility of P.W.4. They further
testified that P.W.4 did not report the incident of setting fire to the
waste material and burning of plants on the road side to
Yeleswaram to China Sankarlapudi and K.Suribabu also did not
inform them about the fire accident; P.W.1 reported the incident to
them a month after it occurred; P.W.1 enquired about the
compensation claim made by P.W.4; they informed P.W.1 that he
did not pay any amount; furthermore, they informed him that
D.F.O (Divisional Forest Officer) will impose a penalty for any loss
sustained. Having learnt about the incident, P.W.5 visited the
scene of the offence and asked P.W.4 for lodging a report, though it
was outside his purview.
38. The evidence of P.Ws.5 and 6 is not disputed by the
prosecution. Their evidence establishes that P.W.4 was not a
competent person to report to the Police. It is also clear from their
evidence that the accused was appraised that he need not pay the
amount. The evidence of P.Ws.5 and 6 shows that P.W.1 was
informed that the Police Officer has no jurisdiction to impose a fine
or to take further action, and the D.F.O is the competent authority.
It is unclear when P.W.1 was informed by the competent Forest
Officers why he approached the Police Officer and paid the alleged
bribe amount.
22 TMR,J
Crl.A.Nos.574 & 583 of 2016
39. The evidence of P.W.8-J.S. Rama Rao, D.S.P, establishes that
during March 2006, P.W.1 approached him and submitted Ex.P3-
report with a request to render justice in connection with the
report given by P.W.4; he made an endorsement (Ex.D.1) on Ex.P3
to S.I of Police, Yeleswaram to settle the dispute between P.W.1
and P.W.4. He also deposed that he advised P.W.1 to pay
Rs.2000/- towards compensation to P.W.4. As P.W.8 did not
support the prosecution case, he was cross-examined. Still,
nothing was elicited in support of the prosecution case. Ex.P3
report clearly establishes that P.W.1 approached P.W.8 on
12.03.2006 and informed him that he did not set fire to the plants,
and he was in no way concerned with that. Still, the S.I of Police
did not take into consideration his version, and he requested the
D.S.P (P.W.8) to conduct an enquiry. The prosecution has also not
disputed the lodging of Ex.P3 report to P.W.8 by P.W.1 and his
making Ex.D.1 endorsement.
40. P.W.12-P.J. Jayaraju testified that on 24.03.2006 at 9.45
p.m., P.W.11 investigation officer instructed him to go to
Yeleswaram Police Station and seize the documents relating to the
case; upon receiving the instructions, P.W.12 along with mediators
visited the police station; he identified himself to the station
writer/HC 1464 and requested the case papers related to the
burning of Social Forestry plants; he then seized these reports in
23 TMR,J
Crl.A.Nos.574 & 583 of 2016
the presence of the mediators, and all these events were
documented in the mediator's report, Ex.P18; subsequently,
P.W.12 sent a draft final report along with copies of documents and
received the sanction order to file the Charge Sheet. P.W.12's
testimony establishes that the report, Ex.P.3, which was lodged by
P.W.s1 to 8, was seized from the police station. It's important to
note that in Ex.P.1, the report filed by P.W.1, he did not mention
his lodging of Ex.P.3 report against the Sub-Inspector of Police to
the Deputy Superintendent of Police (D.S.P). Additionally, in
Ex.P.3, P.W.1 did not make any allegations that the Sub-Inspector
of Police (A.O.1) had demanded a bribe payment. This raises
questions about the consistency and content of the allegations
made by P.W.1 regarding the demand for a bribe.
41. The evidence of D.W.1-K. Veera Swamy shows that he was
Sarpanch and his wife was Mandal Parishad President;
P.W.1/R.Surya Rao has been his friend for 30 years. Social
Forestry trees were damaged by fire; they went to the Police Station
and ascertained about the case from A.O.1, and they went through
the report (Ex.P.4), wherein P.W.4 sought compensation of
Rs.8000/-; after two days, P.W.1 telephoned him and requested to
come to his land, they went to the said land and observed the land
and damaged trees, they fixed the compensation at Rs.3000/-.
P.W.1 and P.W.4 agreed, and they informed the S.I in March 2006;
24 TMR,J
Crl.A.Nos.574 & 583 of 2016
P.W.4 told him about the non-payment of compensation by P.W.1;
P.W.4 told him that he met the S.I and the S.I informed him that
the D.S.P. asked the S.I to take Rs.2000/- from P.W.1 towards
compensation, but after four days, P.W.4 approached and informed
him that P.W.1 is not paying amount; on the next day, they came
to know about the trap through paper.
42. D.W.2-S. Kondala Rao also testified along the same lines as
deposed by D.W.1. DW.2 deposed that after 1½ months, P.W.4
informed him that P.W.1 did not pay the amount; later he
contacted P.W.1, who informed him that he was Hospital at
Visakhapatnam and will come and talk; the S.I of Police informed
them that P.W.1 approached the D.S.P and the D.S.P asked P.W.1
to pay Rs.2000/- and the S.I of Police informed them to make the
payment directly to P.W.4.
43. The prosecution examined P.W.3-R.Satyanarayana to
establish that he stated before ACB officials that he was present at
the time A.O.1 demanded Rs.3,000/- as a bribe for not filing case
against P.W.1. He did not support the prosecution case, but he
supported the A.O.1's version. He testified that P.W.4 demanded
P.W.1 to pay compensation of Rs.8,000/-; A.O.1 who was working
of S.I of Police along with A.O.2 came to the fields; P.W.1 made a
proposal that he will replace the plants in the place of damaged
trees, but P.W.4 did not agree; later, the compensation was
25 TMR,J
Crl.A.Nos.574 & 583 of 2016
negotiated at the scene of offence to Rs.3,000/-; P.W.1 agreed to
pay Rs.3,000/- and P.W.4 also agreed to receive; but P.W.1 failed
to pay the said amount; later, P.W.1 informed him that he met
D.S.P and he directed him to pay Rs.2,000/- instead of Rs.3,000/-
to P.W.4 towards compensation. As he did not support the
prosecution case, he was cross examined by Addl.P.P.
44. During the cross-examination of P.W.1, it is revealed that a
week after P.W.4 submitted Ex.P4, both the Sarpanch of Eluru
village and A.O.1 and A.O.2 were present at the scene of the
accident where the branches were burnt. During this visit, the
dispute was settled, and he agreed to pay Rs.3,000/- as
compensation for the burnt trees to P.W.4. About one and a half
months after this settlement, he approached D.S.P Peddapuram,
informing him that P.W.4 had demanded Rs.3,000/- as
compensation; he expressed his intention to replace and replant
the garden instead of paying Rs.3,000/- to P.W.4. He submitted
Ex.P3 representation to P.W.8 on March 12, 2006. In the presence
of P.W.1, P.W.8 telephoned A.O.1 and informed him that the
matter had been settled for Rs.2,000 in compensation to be paid to
P.W.4 instead of the previously agreed Rs.3,000. P.W.8 made an
Ex.D.1 endorsement. In the cross-examination conducted on June
2, 2011, P.W.1 stated that A.O.1 demanded Rs.2,000/- as
compensation, and he believed this amount was a bribe; amount of
26 TMR,J
Crl.A.Nos.574 & 583 of 2016
Rs.2,000/- paid by him to A.O.1 on the day of the trap was the
compensation amount directed by the D.S.P. This inconsistency in
P.W.1's statements raises questions about his credibility, as he did
not adhere to his earlier version. It is important to note that there
was no mention of A.O.1 demanding a bribe in the Ex.P3 report
submitted by P.W.1 to the D.S.P. It is evident that the learned
Magistrate recorded Ex.P2, a statement in which P.W.1 stated that
P.W.8 directed him to pay Rs.2,000/- to A.O.1, and P.W.8 informed
A.O.1 accordingly. This further adds to the inconsistency in
P.W.1's account of events.
45. Upon careful analysis of the prosecution's evidence, it
becomes evident that, despite P.W.1's protest, the elders directed
him to pay Rs.3,000/- as compensation to P.W.4. Although P.W.1
was unwilling to pay this amount, he sought advice from Forest
officials, who informed him that he was not required to pay the
compensation and the authority to impose penalties rested with
the Divisional Forest Officer (D.F.O). In spite of this, A.O.1 insisted
that P.W.1 pay Rs.3,000/- to P.W.4. Later, P.W.1 approached the
D.S.P (P.W.8), who also directed him to pay compensation, but at a
reduced amount of Rs.2,000/-. The defence version, as presented
by A.O.1, is also supported by the evidence given by P.W.1 during
cross-examination. It is notable that even it is the prosecution's
case, P.W.1 approached P.W.8 and filed a complaint against A.O.1
27 TMR,J
Crl.A.Nos.574 & 583 of 2016
regarding the allegation of setting fire to the plants. Given these
circumstances, it becomes difficult to believe that A.O.1 insisted on
receiving a bribe from P.W.1, especially in light of the involvement
of his superior, P.W.8, and the fact that P.W.1 was not willing to
pay the compensation to P.W.4 as originally agreed upon before the
elders.
46. It is also relevant to mention the principle held by the Apex
Court in State of Assam v. Ramen Dowarah2, wherein it is
categorically held that "men may lie but the circumstances do not is
the cardinal principle of the evaluation of evidence".
47. It is worth noting that P.W.1's testimony does not indicate
that the D.S.P directed him to pay Rs.2,000/- as a bribe to A.O.1.
If this had been the case, P.W.1 would have likely raised this issue
with the D.S.P (P.W.11). During their interactions, but this was not
mentioned in his court testimony. Instead, the evidence suggests
that A.O.1 insisted that P.W.1 pay Rs.3,000/- in compensation to
P.W.4. The records demonstrate that D.S.P (P.W.8) advised A.O.1
to resolve the matter by having P.W.1 pay Rs.2,000/- to P.W.4 as
compensation. P.W.1's testimony also confirms that P.W.8
conveyed this information to A.O.1. Given these facts, it is
plausible that A.O.1 took the money, believing that P.W.1 was
providing Rs.2,000/- as per the D.S.P's guidance, and
(2016) 3 S.C.C. 19
28 TMR,J
Crl.A.Nos.574 & 583 of 2016
subsequently handed it over to A.O.2. This defence version is also
supported by P.W.8. P.W.1 further stated during cross-examination
that within one week of presenting Ex.P.3 to the D.S.P (P.W.8),
A.O.2 visited their fields and demanded a payment of Rs.2,000/-
as agreed upon, leading to feelings of insult.
48. When P.W.1 was informed by P.Ws.5 and 6 that P.W.1 had
no role to play in this matter, and P.W.4 was also not competent to
give a report, it is difficult to believe that the payment of
Rs.3,000/- to A.O.1 was a bribe, knowing there was no possibility
of registering a crime against him. No doubt, if a public servant
erroneously represents that particular Act is within the exercise of
his official duty, he would be liable to conviction, and the inducing
of the belief by the bribe taker would be quite enough to establish
the charge. It does not require that the public servant must be in a
position to do the official Act, favour or service at that time. It
seems that as P.W.4 was insisting P.W.1 to pay compensation of
Rs.2000/- to him and A.O.1 was supporting P.W.4's case, though
P.W.1 need not pay such an amount, P.W.1 approached the A.C.B
officials without revealing actual facts before them.
49. In P. Sirajuddin v. State of Madras 3, the Hon'ble Apex
Court expressed the need for a preliminary enquiry before
proceeding against public servants. While expressing the need for a
(1970) 1 SCC 595
29 TMR,J
Crl.A.Nos.574 & 583 of 2016
preliminary enquiry before proceeding against public servants who
are charged with the allegation of corruption, it is observed as
follows:
"before a public servant, whatever be his status, is publicly
charged with acts of dishonesty which amount to serious
misdemeanour or misconduct of indulging into corrupt practice
and a first information is lodged against him, there must be
some suitable preliminary enquiry into the allegations by a
responsible officer. The lodging of such a report against a person
who is occupying the top position in a department, even if
baseless, would do incalculable harm not only to the officer in
particular but to the department he belonged to in general. If the
Government had set up a Vigilance and Anti-Corruption
Department as was done in the State of Madras and the said
department was entrusted with enquiries of this kind, no
exception can be taken to an enquiry by officers of this
department". It is further observed that "when such an enquiry
is to be held for the purpose of finding out whether criminal
proceedings are to be initiated and the scope thereof must be
limited to the examination of persons who have knowledge of
the affairs of the person against whom the allegations are made
and documents bearing on the same to find out whether there is
a prima facie evidence of guilt of the officer, thereafter, the
ordinary law of the land must take its course and further
enquiry be proceeded with in terms of the Code of Criminal
Procedure by lodging a first information report"
50. In N.Vijay Kumar V. State of Tamil Nadu4, the Hon'ble
Apex Court held that:
"Before recording conviction under the provisions of the
Prevention of Corruption Act, courts have to take utmost care in
scanning the evidence. Once conviction is recorded under
provisions of Prevention of Corruption Act, it casts a social
stigma on the person in the society apart from serious
consequences on the service rendered. At the same time it is
also to be noted that whether the view taken by the trial Court is
2021 Criminal Law Journal 1352
30 TMR,J
Crl.A.Nos.574 & 583 of 2016
a possible view or not, there cannot be any definite proposition
and each case has to be judged on its own merits, having regard
to evidence on record."
51. This Court views that had P.W.11-Investigation Officer made
proper enquiries, he could have known that P.W.1 approached the
Forester (P.W.5), Forest Ranger (P.W.6) and D.S.P eliciting as to
whether he should pay any compensation amount as demanded by
P.W.4. P.W.8 also stated in cross-examination held by Spl. P.P that
it is incorrect to say that he stated before D.S.P (P.W.11) that he
never advised or suggested to give Rs.2,000/- instead of Rs.3,000/-
as displayed in Ex.P.7 Section 161 Cr.P.C statement.
52. P.W.1 initially claimed that A.O.1 directed him to pay a
compensation amount of Rs.8,000/- to P.W.4 during the first
instance when he was called to the Police Station. However, it's
important to note that neither in Ex.P.3 nor Ex.P.2, it is mentioned
that A.O.1 demanded a bribe from P.W.1. Additionally, the defence
examined D.W.4 (M.J. Prasad), who conducted a departmental
enquiry and submitted Ex.D.8 report. This report indicated that
the charges against the delinquent officer (A.O.1) were not proven.
According to Ex.D.8, P.W.1 informed the enquiry officer that A.O.1
had asked him to pay compensation of Rs.8,000/- for the damage
caused to the plants, but he had refused to pay and assured that
he would replant. P.W.1 did not state during the enquiry that
A.O.1 had demanded Rs.2,000/- as a bribe. The P.W.1's evidence
31 TMR,J
Crl.A.Nos.574 & 583 of 2016
shows that he provided different versions of events. Furthermore,
the mediators' report (Ex.P13) indicated that when questioned by
the investigation officer (P.W.11), both A.O.1 and A.O.2 claimed
that P.W.1 was responsible for the loss of 15 trees because he had
burned sugarcane waste from his fields. A.O.1 had informed P.W.1
about the complaint and directed him to pay for the damages.
However, P.W.1 refused to pay any compensation, stating that he
was not responsible for the loss, and subsequently reported the
matter to the D.S.P.
53. In the impugned Judgment, the trial Court observed that
P.W.1 made inconsistent statements and has resiled from his 161
Cr.P.C. statement. The trial court should have appreciated that the
inconsistencies in material particulars will lead to different views
and conclusions, which become part of a chain of events to be
proved by the prosecution beyond all reasonable doubt. The trial
court observed at para No.43 of its Judgment as follows:
The evidence of P.W1/R. As discussed supra, Surya Rao
reveals that he gave false evidence, including deviation from
Report/Ex.P1, the statement recorded U/s.164 of Cr. P.C., in
his chief, confined to most of the prosecution cases, cross-
examination he introduced some aspects, including
compensation, the evidence on record, prima facie warrants,
and issuing of show-cause notice to P.W.1 for giving false
evidence. Considering the evidence on record, the Court
prima facie holds that this is a fit case. Further, it is
expedient in the interest of justice to prosecute P.W.1 under
section 193 of I.P.C. for giving false evidence before the Court
in the corruption case. Under the above circumstances, the
32 TMR,J
Crl.A.Nos.574 & 583 of 2016
Court ordered to issue a show cause notice to P.W.1, calling
for an explanation.
54. The Hon'ble Apex Court in Ram Prakash Arora Vs. State
of Punjab5 held that the complainant was an interested and
partisan witness concerned with the success of the trap, and his
evidence must be tested in the same way as any other interested
witness. The Court might look for independent corroboration before
convicting the accused person.
55. In Panalal Damodar Rathi Vs. State of Maharashtra 6,
the Hon'ble Apex Court held that:
"There could be no doubt that the evidence of the complainant
should be corroborated in material particulars. After the
introduction of Section 165-A of the Indian Penal Code making
the person who offers a bribe guilty of abetment of bribery, the
complainant cannot be placed on any better footing than that of
an accomplice and corroboration in material particulars
connecting the accused with the crime has to be insisted upon.
...there is no corroboration of the testimony of the complainant
regarding the demand for the money by the Appellant. On this
crucial aspect, therefore, it has to be found that the version of
the complainant is not corroborated and, therefore, the
complainant's evidence on this aspect cannot be relied on.
56. In the instant case, from the material on record, it is amply
clear that the complainant (P.W.1) has not supported the
prosecution's case on an important aspect, namely the demand for
a bribe by the appellants, which is a sin qua non for constituting
(1972) 3 SCC 652
(1979) 4 SCC 526
33 TMR,J
Crl.A.Nos.574 & 583 of 2016
the offences under section 7 and 13(1)(d) r/w sec.13(2) of the P.C
Act in convicting the appellants.
57. Thus, there is every indication that the complainant (P.W.1)
has not spoken the whole truth. There is room for doubt, and the
defence version could be correct. The prosecution has failed to
discharge the initial burden of proving that the appellants accepted
or obtained the money as gratification other than legal
remuneration. The prosecution evidence was undoubtedly required
to be assessed beyond the realm of reasonable doubt for
discharging the initial burden upon the prosecution. If such
evidence were not forthcoming, the appellants would be given the
benefit of the same. Thus, the P.W.1's version about the demand
made by the 1st Appellant from time to time is an improvement.
There is no other evidence of the alleged demand. The P.W.1's
evidence about the demand for a bribe by the 1st Appellant could
be more reliable. The entire case is based on P.W.1's evidence that
A.O.1 demanded the bribe amount. This Court finds force in the
defence counsel's submission that when the trial court concluded
that P.W.1 gave false evidence and, based on the said evidence,
how the conviction lies against the A.O.1 and A.O.2.
58. The possibility of P.W.1 being inimical and having ill will
towards the appellant/A.O.1 as he insisted to pay the
compensation amount to P.W.4 cannot be ruled out. Enmity or ill
34 TMR,J
Crl.A.Nos.574 & 583 of 2016
will is like a double-edged weapon; it cuts either way. It is settled
principles of law that the prosecution has to prove its case beyond
all reasonable doubt. There is a lot of difference between 'may be
true' and 'must be true'. If two views are possible from the evidence
of the prosecution, then the view favourable to the accused will
have to be accepted by the Court. P.W.1, who is a highly interested
person, his evidence shows not reliable.
59. It is well settled that the initial burden of proving that the
accused accepted or obtained the amount other than legal
remuneration is upon the prosecution. Only when this initial
burden is successfully discharged by the prosecution that the
burden of proving the defence shifts upon the accused, a
presumption would arise under section 20 of the P.C Act.
60. The evidence of D.Ws.1 to 3 remained unshattered in cross-
examination by the learned Additional Public Prosecutor in
Dudhnath Pandey v. State of U.P.7, the Hon'ble Apex Court held
that:
"Defence witnesses are entitled to equal treatment with those of
the prosecution. And, Courts ought to overcome their traditional,
instinctive disbelief in defence witnesses. Quite often they tell
lies but so do the prosecution witnesses."
61. In the instant case, why should D.Ws.1 to 3 raise evidence to
extricate the accused? It is elementary that where the prosecution
(1981) 2 SCC 166
35 TMR,J
Crl.A.Nos.574 & 583 of 2016
has a definite or positive case, it must prove the whole case.
Moreover, an additional circumstance throws severe doubt on the
complicity of the 1st Appellant.
62. The complainant (P.W.1) did not support the prosecution's
case in so far as the demand made by the accused No.1 is
concerned. When the complainant himself has disowned, and there
is no other evidence to prove that the accused had made any
demand, the evidence of P.W.1 and the contents of Exs.P.1 and P.2
cannot be relied upon to conclude that the above material
furnishes proof of demand allegedly made by the accused No.1. I
am, therefore, inclined to hold that the learned trial Court was not
correct in holding the demand alleged to be made by the accused
No.1 as proved.
63. Apart from the statement under section 164 Cr.P.C., the trial
court also gave much weightage to the F.I.R under Ex.P.1, which is
also not a substantive piece of evidence. The Hon'ble Supreme
Court in Dharma Rama Bhagare V. State of Maharashtra8,
held as under:
".....The First Information Report, it may be pointed out, is never
treated as a substantive piece of evidence. It can only be used
for corroborating or contradicting its maker when he appears in
Court as a witness. Its value must always depend on the facts
and circumstances of a given case...."
(1973) 1 SCC 537
36 TMR,J
Crl.A.Nos.574 & 583 of 2016
64. In B. Jayaraj Vs. State of Andhra Pradesh9, the three-
judge Bench of the Hon'ble Apex Court held that:
"...Mere possession and recovery of the currency notes from the
accused without proof of demand will not bring home the offence
under Section 7. The above also will be conclusive in so far as
the offence under Section 13(1)(d)(i)(ii) is concerned as in the
absence of any proof of demand for illegal gratification, the use
of corrupt or illegal means or abuse of position as a public
servant to obtain any valuable thing or pecuniary advantage
cannot be held to be established.
9. In so far as the presumption permissible to be drawn under
Section 20 of the Act is concerned, such presumption can only be
in respect of the offence under Section 7 and not the offences
under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on
proof of acceptance of illegal gratification that presumption can
be drawn under Section 20 of the Act that such gratification was
received for doing or forbearing to do any official act. Proof of
acceptance of illegal gratification can follow only if there is proof
of demand. As the same is lacking in the present case, the
primary facts on the basis of which the legal presumption under
Section 20 can be drawn are wholly absent."
65. In Suraj Mal v. State (Delhi Admn.)10, the Hon'ble Apex Court
took the view that "mere recovery of tainted money divorced from
the circumstances under which it is paid is not sufficient to convict
the accused when the substantive evidence in the case is not
reliable. The mere recovery by itself cannot prove the charge of the
prosecution against the accused, in the absence of any evidence to
prove payment of bribe or to show that the accused voluntarily
accepted the money knowing it to be bribe."
(2014) 13 S.C.C. 55
1979 (4) SCC 725
37 TMR,J
Crl.A.Nos.574 & 583 of 2016
66. In C.M.Girish Babu v. C.B.I., Cochin, High Court of
Kerala11, the Hon'ble Apex Court held as follows:
"19. It is well settled that the presumption to be drawn under
Section 20 is not an inviolable one. The accused charged with
the offence could rebut it either through the cross examination of
the witnesses cited against him or by adducing reliable
evidence. If the accused fails to disprove the presumption the
same would stick and then it can be held by the Court that the
prosecution has proved that the accused received the amount
towards gratification. 20. It is equally well settled that the
burden of proof placed upon the accused person against whom
the presumption is made under Section 20 of the Act is not akin
to that of burden placed on the prosecution to prove the case
beyond a reasonable doubt."
67. In N.Vijaya kumar v. State of Tamil Nadu12, the Hon'ble
Supreme Court held that mere recovery of currency notes from the
accused officer in the absence of proof of demand for illegal
gratification would result in the case against such accused officer
not being proved.
68. In T.Subramanyam V. State of Tamilnadu13, the Hon'ble
Apex Court held that if the reasons for receiving the amount are
explained, and the explanation is probable and reasonable, then
the Appellant has to be acquitted.
2009 3 SCC 779
2021 (1) Supreme 609
2006 (1) A.L.D. (Crl.) 436
38 TMR,J
Crl.A.Nos.574 & 583 of 2016
69. A perusal of the impugned Judgment shows that the Special
Court has placed much emphasis on Section 20 of the aforesaid
Act, which pertains to the presumption operating against the
public servant when it is proved that he has accepted or obtained
or attempted to obtain an undue advantage. However, the Special
Court has failed to appreciate that even if a presumption is to arise
under Section 20 of the aforesaid Act, the foundational facts for
raising such a presumption have to be proved. Even otherwise, any
presumption is rebuttable, and such rebuttal has to be on the
touchstone of preponderance of probabilities. As noted above, the
circumstances have come on record, including the cross-
examination of the complainant-P.W.1, do indicate that even if a
presumption was to be raised against the Appellant, it stood
rebutted by the evidence and material on record on the touchstone
of the test of preponderance of probabilities. The Special Court
failed to appreciate this aspect of the matter.
70. It is true that P.W.1 made statements before the Court which
were quite different from the statement made by him before the
Police during the course of the investigation. Though after being
declared hostile, in his cross-examination, P.W.1 supported some
part of the prosecution case, he has virtually denied the essential
ingredients to bring home the guilt of the accused. The statements
made by P.W.1 under Section 161 Cr.P.C. and Section 164 Cr.P.C.
39 TMR,J
Crl.A.Nos.574 & 583 of 2016
and the evidence produced before the Court during the trial are
self-contradictory, and there are several inconsistencies in his
statements at different levels. Therefore, his statements cannot be
relied upon in convicting the accused.
71. This Court views that the probative value of the proved
circumstances must be considered with due regard to ordinary
human conduct and on a pragmatic and realistic approach; the
entire evidence in totality has to be taken into consideration; the
evidence is not to be considered in isolation, but the total
cumulative effect of all proved circumstances has to be considered.
72. In so far as the presumption permissible to be drawn under
Section 20 of the Act is concerned, such presumption can only be
in respect of the offence under Section 7 and not the offences
under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on
proof of acceptance of illegal gratification that presumption can be
drawn under Section 20 of the Act that such gratification was
received for doing or forbearing to do any official act. Proof of
acceptance of illegal gratification can follow only if there is proof of
demand. As the same is lacking in the present case, the primary
facts on the basis of which the legal presumption under Section 20
can be drawn are wholly absent.
73. The evidence on record would disclose that there is no
demand made by either accused Nos. 1 or 2 on 25.01.2006 or
40 TMR,J
Crl.A.Nos.574 & 583 of 2016
23.03.2006. Without any demand, recovery of money itself is not
sufficient to prove the guilt of the accused as per the judgments
cited above. The accused need not prove their defence beyond a
reasonable doubt, and it is sufficient if they could raise a probable
doubt to accept their contention as accurate. If two views are
possible from the very same evidence, it cannot be said that the
prosecution had proved the case beyond reasonable doubt that the
accused had received the amount of Rs.2000/- towards illegal
gratification.
74. I am satisfied that the appellants have proved their case by
the test of preponderance of probability, and this Court,
accordingly, reached the conclusion that the 1st Appellant did not
take the amount as gratification. He was made to believe that the
amount paid to him was towards the payment of compensation to
P.W.4 as per the instructions of the D.S.P. (P.W.8).
75. A perusal of the entire evidence on record shows that the
evidence of prosecution witnesses is full of contradictions and
discrepancies with regard to the material aspects. The upshot of all
that I have stated above is that the prosecution case is bristling
with improbabilities.
76. Given the reasons above, the trial Court's approach in the
case is erroneous, and the trial Court has relied upon the
prosecution's evidence on the aspect of demand of illegal
41 TMR,J
Crl.A.Nos.574 & 583 of 2016
gratification from the complainant (P.W.1) by the appellant/A.1,
though there is no substantial evidence in this regard, the
appellants/A.1 and A.2 were erroneously convicted for the charges
framed against them. The prosecution has failed to prove the
factum of demand of bribe money made by the 1st Appellant from
the complainant (P.W.1), which is the sine qua non for convicting
them for the offences punishable under section 7 and 13(1)(d) r/w
sec.13(2) of the P.C. Act. Thus, the impugned Judgment and order
of the trial court is not only erroneous but also suffers from error
in law and, therefore, liable to be set aside.
77. For the reasons above and regarding the principles of law
laid down in the judgments mentioned above, the prosecution has
failed to prove its case against the appellants/A-1 and A-2 beyond
all reasonable doubt. Hence, the impugned conviction and
sentence imposed against the appellants/A-1 and A-2 are liable to
be set aside.
78. As a result, both Criminal Appeals are allowed. The
conviction and sentence imposed against the appellants/A.O.1 and
A.O.2 in C.C. No.58 of 2007 on the file of the Special Judge for
S.P.E. and A.C.B Cases-cum-III Additional District Judge,
Vijayawada, are hereby set aside, and the appellants/A-1 and A-2
are acquitted for the said offences. Further, the bail bonds of the
appellants/A-1 and A-2 shall stand cancelled, and their sureties
42 TMR,J
Crl.A.Nos.574 & 583 of 2016
are discharged. The fine amount, if any, paid by the appellants/A-
1 and A-2 shall be refunded to them.
Consequently, miscellaneous petitions, if any, pending shall
stand closed.
___________________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 19.10.2023.
MS/SAK
43 TMR,J
Crl.A.Nos.574 & 583 of 2016
THE HON'BLE SRI JUSTICE T. MALLIKARJUNA RAO
CRIMINAL APPEAL NO.574 OF 2016
AND
CRIMINAL APPEAL NO.583 OF 2016
Dt. 19.10.2023
MS
