Andhra Pradesh High Court - Amravati
V.Ravindrudu vs The State Of A.P., Rep. By Inspector Of ... on 22 January, 2021
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Criminal Appeal No.1158 of 2006
JUDGMENT :
1. This appeal is preferred under Section 374(2) of Cr.P.C. challenging the conviction and sentence imposed in C.C.No.27 of 2001 by the Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad.
2. Originally, the accused officer, who was working as Work Inspector in Singanamala Section of A.P. Housing Corporation, was tried for the offences punishable under Sections 7 & 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. Vide its judgment dated 31st August, 2006, the learned Special Judge convicted the accused officer under both the counts and sentenced him to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for three months under each of the count. The substantive sentences of imprisonment were directed to run concurrently.
3. The substance of the charge against the accused is that on 12.10.2000, the accused, who was working as Work Inspector, demanded and accepted a sum of Rs.500/- as illegal gratification, from P.W.1 for sanctioning the pending bill amount of Rs.4,500/-, spent towards construction of house sanctioned to P.W.6.
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4. The facts, as culled out from the evidence of the prosecution witnesses, are as under :
P.W.6 is a mother-in-law of P.W.1. On 24.10.1998, the M.L.A. of Singanamala sent proposal for six houses at Narsapuram, in his quota for B.Cs. and E.B.Cs. The said letter was forwarded to the District Collector for sanction and accordingly the Collector sanctioned six houses and sent the proceedings to the A.P. State Housing Corporation. P.W.4, who was working as Senior Assistant in the A.P. State Housing Corporation, sent these proceedings to Deputy Executive Engineer, Housing, for construction of those houses.
5. P.W.5 was working as Assistant Engineer in the office of Singanamala Section of A.P. Housing Corporation during the said period. According to him, after receipt of proceedings from the Collector, the concerned Work Inspector visits the beneficiary, observe the position of land and mark boundaries for construction of house. Thereafter, the Corporation shall issue proceedings to the beneficiaries for release of cement, steel & bricks to the beneficiaries for construction of the basement, after making entries in the Form No.30 register. Thereafter, P.W.5 will sign the indent form and give it to the concerned beneficiaries. The beneficiaries will collect the same from the go-down. It has come on record that in case the beneficiary himself intends to construct the house with 3 his funds, P.W.5 will take measurements of that house, prepare M-book and submit it to D.E. for check measurement. The Work Inspector concerned will take valuation form, which will be incorporated in M-book. The D.E., as per the said valuation, issues proceedings and send it to the District Manager Office, who, in turn, will send it to the bank and then the amount will be credited to the account of the beneficiary. It is said that under Rural Permanent Housing Scheme, an amount of Rs.17,500/- will be given to each beneficiary, which includes cost of cement, bricks, W.C. pan. After subtracting the costs of this material out of Rs.17,500/-, the balance would be remitted to the account of the beneficiary.
6. The evidence discloses that a house was sanctioned to P.W.6 under RPHS scheme. After complying with the requirements, on 17.4.1999, about 35 bags of cement, price ranging from Rs.105/- to Rs.100/- were given to P.W.6, apart from 250 cement bricks worth Rs.5.50 ps. each and a W.C. panal worth Rs.285/-. The estimated value of the material supplied to P.W.6, was about Rs.5,205/-. The Work Inspector prepared the valuation form relating to P.W.6 and P.W.5 prepared M-book record, which is placed on record as Ex.P8. The total construction value as assessed by P.W.5 was at Rs.13,000/-, including the cost of the material supplied. While things stood thus, the claim of P.W.6 is that she was given a cheque by the Housing Corporation for Rs.7,795/- 4 and the balance amount of Rs.4,000/- was not paid and that she came to know that accused officer demanded bribe for payment of the balance amount.
7. P.W.1 (who was declared hostile) in his evidence in chief deposed that while the Corporation gave 35 bags of cement, 205 cement bricks and 1 W.C. pan along with cash of Rs.7,500/-, he has spent, on his own, a further sum of Rs.4,500/-.
8. As P.W.1 did not support the prosecution case and gave a distorted version, it will be appropriate to refer to the evidence of Investigating Officer with regard to the incident in question. According to P.W.11, who was working as D.S.P., ACB, Tirupati Range, Tirupati, at the relevant point of time, P.W.1 came to his house and presented a report on 13.10.2000 at 7.00 AM; pursuant to which, he directed him to come in the afternoon. After verifying the bona fides of P.W.1 and also the reputation of the accused officer, he found the report of P.W.1 genuine and that the accused officer, against whom the complaint was given, was corrupt. After ascertaining these facts, he obtained permission from the head office for registration of a crime and to lay a trap against the accused officer. Pursuant thereto, he registered a case in crime No.9/ACB-ATP/2000 under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and issued F.I.R. Ex.P18 is the F.I.R. He, then secured the presence of 5 P.W.2 and one Sanjeeva Kumar to act as mediators. Accordingly, all of them met in the office of D.S.P. at 2.00 PM, wherein P.W.1 was introduced to the mediators and the other staff members. He gave a copy of the report given by P.W.1 to the mediators, who, on being satisfied with the contents therein and after examining the complainant-P.W.1, satisfied with regard to the genuineness of the complaint. After P.W.1 produced the bribe amount of Rs.500/-, the numbers of the notes were noted down in the first mediator's report, which is placed on record as Ex.P6. Thereafter, the significance of the phenolphthalein test and the manner in which it is done was explained to P.W.1 and others. P.W.1 was instructed to give the bribe amount only on demand made by the accused officer and after acceptance of the amount, he was instructed to give a signal by wiping his face thrice with his handkerchief.
9. All the trap party members were directed to wash their hands with soap water. The bribe amount was kept in the left side shirt pocket of P.W.1. After completing the pre-trap proceedings, the entire trap party reached the house of the accused officer, located in the second road, Anantapur. P.W.1, after receiving the instructions once again, got down from the jeep and proceeded to the house of accused officer. The trap party members also got down from the said vehicle, proceeded to the vicinity of the house and took vantage positions. P.W.2, who was one of the mediators to the pre- 6 trap and post-trap proceedings, states that while they were outside the house of the accused, one person came out of the house and proceeded towards northern side of the house on a T.V.S. Suzuki motorcycle. The complainant (P.W.1) came running and informed them that the person who left on the motorcycle is Work Inspector who received the bribe amount while making demand. He further informed that the accused officer is going on urgent work towards R.T.C. bus stand. Then, the entire trap party went to the R.T.C. bus stand and reached near to the western side entrance of the bus stand. At that point of time, they noticed the accused officer coming out of the Gouthami Nursing Home, situated besides the bus stand; got on to his motorcycle and then proceeded towards the western side. The trap party followed him in their jeep.
10. After the accused officer entered the office, P.W.1 was asked to stay outside the office room and Investigating Officer, along with the mediators, went inside the office. After disclosing their identity and after ascertaining the name of the accused officer, sodium carbonate solution was prepared by one of the members of the trap party and when the accused officer rinsed his fingers, fingers of both his hands turned positive to the phenolphthalein test. M.Os.3 and 4 are the resultant solutions. When asked about the amount he received from the complainant (P.W.1), the accused officer produced a wad of currency notes from his left side shirt pocket and kept them on the table. On instructions of D.S.P., 7 the mediators picked up the notes, which tallied with the numbers mentioned in the pre-trap proceedings. M.O.5 is the said bunch of currency notes. The D.S.P. secured the shirt of the accused officer and when the inner lining of the shirt pocket was tested, the same proved positive to phenolphthalein test. M.O.6 is a bottle containing resultant solution. On demand made by D.S.P., the accused officer produced Form-30 register and the measurement book. Ex.P7 is the Form-30 register and Ex.P8 is the measurement book. Thereafter, the D.S.P. called the complainant-P.W.1 and asked him to state as to what all happened after he left the trap party. The same was incorporated in the second mediators' report, which is placed on record as Ex.P10. The rough sketch of the scene was also prepared, which is marked as Ex.P9. The accused was arrested and released on bail. After completing the trap proceedings, the house of the accused officer was searched, but, nothing incriminating was found. Ex.P19 is the search list of the articles found in the house of the accused officer.
11. During the course of investigation, 164 Cr.P.C. statement of P.W.1 was also recorded. Further investigation in this case was taken over by P.W.12, the Inspector of Police, who, after examining all the witnesses and after collecting the necessary documents, filed charge-sheet before the court on 27.11.2001, which was taken on file as C.C.No.27 of 2001 by the Additional Special Judge for SPE and ACB Cases, City 8 Civil Court, Hyderabad. On appearance of the accused, copies of the documents were furnished and thereafter, charges, as referred to above, came to be framed, read over and explained to the accused officer, to which he pleaded not guilty and claimed to be tried. The plea of the accused is one of denial.
12. In support of its case, the prosecution examined P.Ws.1 to 12 and got marked Exs.P1 to P20. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, to which he denied. He got examined D.Ws.1 and 2 and got marked Exs.D1 and D2 in support of his plea. Out of the twelve witnesses examined by the prosecution, P.Ws.1, 9 and 10 did not support the prosecution case and were treated hostile by the prosecution. Since the material on record show that there was an official favour pending with the accused officer and as the amount was paid and received by the accused officer as illegal gratification for doing an official favour, the trial court convicted the accused. Challenging the same, the present appeal came to be filed.
13. Sri Gudapati Venkateswara Rao, learned counsel appearing for the appellant, would contend that since P.W.1 did not support the prosecution case, the entire fabric of the 9 case collapses and the appellant is entitled to succeed on that score alone. He would further submit that as on the date of demand, there was no favour which is pending with the accused officer. According to him, when the evidence of P.W.6 is to the effect that the work has not completed, the question of releasing the amount would not arise. That being so, the accused officer could not have demanded money for clearing the bill. He further submits that having regard to the fact that the accused officer went on his motorcycle from his house to the bus stand, then to the nursing home, thereafter to his office and opened lock of the office room, it is difficult to believe that the phenolphthalein test would have still yielded positive result, as his hands must have come into contact with number of articles. He further pleads that P.W.1 came to his house and kept the amount on a cooler without his knowledge and the accused officer, having noticed the same, thought that this must have kept by his wife or mother, took it and went to the hospital. The said explanation figures in the post trap proceedings, which, according to the counsel for the appellant, cannot be an after thought. This version of the accused officer, though denied by P.W.11, P.W.2, who were present in the office at that time, deposed about the version stated by the accused officer before the A.C.B. officials. Having regard to the above and in the absence of any evidence with regard to the demand by the accused officer, 10 the learned counsel would contend that the accused officer is entitled for the benefit of doubt.
14. Sri S.M.Subhani, learned Standing Counsel for A.C.B., would submit that the evidence on record amply establishes the involvement of the accused officer in the crime. According to him, the version of P.W.1 that the amount was demanded by one Gattu Mallaiah is false for more than one reason. According to him, if really Gattu Mallaiah has demanded money, there was no reason for the trap party to go to the house of the accused officer, secondly, P.W.1 in chief deposed that he gave a complaint to the D.S.P. and Ex.P1 is the complaint given by him, in which demand is said to have been made by the accused officer only and which is in his handwriting. That being so, he would submit that P.W.1 was won over to speak false, but, the circumstances, namely, lodging of Ex.P1 being proved through the evidence of P.W.1 himself, it can be said that the demand made stands established. Though P.W.1 speaks about demand made by Gattu Mallaiah, P.W.6, mother-in-law, supports the prosecution case stating that she came to know that the accused officer demanded bribe from P.W.1, for paying the balance amount and that P.W.1 lodged complaint against him before the A.C.B. officials. The version of the accused officer that there was no favour pending is absolutely incorrect for the reason that the demand was made after the entire work was completed and not when the work is pending. Therefore, 11 according to him, the demand and the recovery of the amount from the accused officer being established and in view of the fact that there exists an official favour to be done, pleads that the finding of the trial court requires no interference.
15. The point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused beyond reasonable doubt for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act?
16. It is well established principle of law that in order to attract the offences punishable under Sections 7 and 13(1) of the Prevention of Corruption Act, one of the foremost ingredient to establish is that the accused officer is a public servant at the relevant point of time and that he has demanded and accepted or obtained gratification other than legal remuneration from the complainant to do an official favour. Before proceeding further with the case, it would be just and proper to refer to two findings which the trial court has arrived at and which remained unchallenged.
17. The learned trial Judge, after referring to judgments in M.Narasing Rao v. State of A.P. (AIR 2001 SC 318); T.Shankar Prasad v. State of Andhra Pradesh (2004 CrLJ. 884); State of A.P. v. Vasu Deva Rao (2004 CrLJ 620) and Hazari Lal v. State, Delhi Administration [(1980) 2 SCC 390] and also the judgments relied on by the counsel for 12 the accused officer, namely, Sita Ram v. The State of Rajasthan (AIR 1975 SC 1432); State of Madhya Pradesh v. J.B.Singh [2001(1) ALD (Crl) 124 (SC)]; T.Subramanian v. State of T.N. [2006(1) SCC 401]; and Dr.Navarathan Singh v. State of A.P. [2006(2) ALD (Crl) 273 (AP)] held as under :
"No doubt in the present case, there is no direct evidence that the accused officer demanded bribe of Rs.500/- from P.W.1. There is also no direct evidence to show that P.W.1 paid Rs.500/- to the accused officer on the date of trap i.e., on 13.10.2000."
These two findings arrived at by the trial court namely that there was no demand and also no evidence to show that the amount was paid by P.W.1, it is now to be seen whether the trial court was justified in convicting the accused. It appears from the record that the trial court convicted the accused merely on the ground that there was recovery of tainted amount from the pocket of the accused officer.
18. In order to appreciate the same it will be appropriate to refer to the evidence and also few judgments of the Apex Court in this regard. It is evident from the record that the complainant herein did not support the prosecution case and he was treated hostile by the prosecution. His evidence in chief was to the effect that the Supervisor Gattu Mallaiah demanded a sum of Rs.500/- for realizing a sum of Rs.4,500/-, which P.W.1 claims to have spent. At the same time, P.W.1 admits to have met the D.S.P., ACB on 13.10.2000 at his office and gave a report. According to him, 13 Ex.P1 is a report given by him, which is in his handwriting. It is to be noted here that he does not speak to the contents of the first report given. On the other hand, his case is that the report given by him against Gattu Mallaiah (not an accused) was given to two mediators, who assembled in the office of the D.S.P. prior to the trap and thereafter necessary steps were taken to lay a trap against Gattu Mallaiah. However, on that day, Gattu Mallaiah was not in the office and the same was informed to the D.S.P. When P.W.1 informed D.S.P. that Work Inspector - Accused Officer was present in his house, which is nearby the office, he was asked to go and pay the amount to him. Pursuant thereto, he went to the house of the accused officer, at which time, the accused officer was washing his feet to have lunch and after enquiring as to why P.W.1 came to his house, asked him to go to the office and wait there. Thereafter, P.W.1 is said to have kept the tainted amount on a air cooler, which was beside the T.V. in the house, then came out and informed the D.S.P. to that effect. At the time D.S.P. and the staff rushed to the house of the accused officer, but, accused officer left on the Suzuki motorcycle towards R.T.C. bus stand. At that stage, this witness was declared hostile.
19. Though he was subjected to lengthy cross-examination by the Public Prosecutor, all the suggestions given to him with regard to the contents of the first report were denied by him. He also denied the suggestion that he went to D.S.P. to 14 inform that the accused officer demanded and received the amount and he leaving the house on a motorcycle towards the bus stand and that they followed him in the jeep. In the cross-examination by the counsel for the accused officer, it has been elicited that the complaint given by him against Gattu Mallaiah was torn out by the A.C.B. people on 13.10.2000 and another complaint was taken from him against the accused officer on the same day night. He further admits that his statement before the Magistrate at Anantapur and the statement before the court in chief-examination are true. The accused officer did not demand bribe from him at any time and did not accept it. It is to be noted here that there is no witness to prove demand and acceptance of the money. As against the evidence in chief, all the suggestions given in the cross-examination by the learned Public Prosecutor were denied.
20. Therefore, it is now to be seen whether there is any material to prove the demand and acceptance of money. A thorough perusal of the entire evidence on record does not establish the same. However, the prosecution tried to rely on the 164 Cr.P.C. statement of P.W.1 which was got recorded by the Investigating Officer on 27.10.2000. Firstly, the said statement is not placed on record. No explanation is forthcoming as to why the said statement recorded under Section 164 Cr.P.C. is not placed on record.
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Secondly, the prosecution sought to show that the accused officer threatened P.W.1 to give a statement before a Magistrate, through the evidence of P.W.3. It would be appropriate to refer to the evidence of P.W.3. P.W.3, who was working as a Constable in Raptadu Police Station from 22.6.2000 till his retirement, in the absence of Sub-Inspector and Assistant Sub-Inspector acted as Station House Officer on that day. According to him, on 27.10.2000, while he was in Police Station, P.W.1 came to the Police Station and lodged a written report. He entered the receipt of the complaint in the General Diary of the Police Station and took xerox copies of the G.D. entry and submitted it to the A.C.B. In the said complaint it was stated that on 13.10.2000 a trap was arranged at the instance of the complainant and on 26.10.2000 night, while he was at his home, four unidentified persons wearing masks and armed with weapons came to his house and threatened him to give a statement before the Magistrate on the next day, which made him to lodge Ex.P11 complaint. Ex.P12 is the xerox copy of the General Diary. But, in the cross-examination, P.W.3 admits that the person, who came and gave the complaint to him, is of the height of 5 feet 5 inches, fair complexioned medium built. He also admits that he did not note nor can he give identity particulars of the said complainant and the complainant was wearing an adda pancha and no proof of identity of the complainant was taken. It will be useful to extract the 16 relevant portion in the cross-examination of P.W.3, which is as under :
"The person I said who came and gave the complaint to me is of the height 5 feet 5 inches, fair complexioned medium built. I did not note, nor I can tell any identity particulars of the said complainant. That complainant was wearing an adda pancha. I did not ask that complainant any proof of his identity."
21. It was further elicited from him that he has not entered in the station dispatch register about he taking Exs.P11 and P12 and handing over the same to A.C.B. and that there are no stamps or seals of Raptadu Police Station on Exs.P11 and P12. Further, there is no endorsement of acknowledgment, seal or signature of the A.C.B. officials on Exs.P11 and P12 in token of he handing over them to the A.C.B. and they receiving them. It will be useful to extract the same, which is as under :
"I have not entered in the Station Dispatch Register about my taking Exs.P11 and P12 to be handed over to the ACB. There are no stamps or seals of Raptadu Police Station on both Exs.P11 and P12. It is true there is no endorsement of acknowledgment, seal or signatures of the ACB officials on Exs.P11 and P12 in token of my handing over them to the ACB and they received them."
22. From the evidence of the said Constable, though the prosecution tried to show that 164 Cr.P.C. statement said to have been made by P.W.1 was due to fear created by the accused officer on the previous day night, but, this court is of the view that the answers elicited in the cross-examination of P.W.3 does not establish that it was P.W.1 who went to the 17 Police Station on that day night and lodged the report. There were neither identity particulars of the person who gave the complaint, nor P.W.3 was asked to identify P.W.1 in the Court. If the version in chief that it was P.W.1 who gave the complaint is to be accepted, there was no necessity for him to give answers with regard to identity of P.W.1, as stated in the cross-examination. Further, Exs.P11 and P12 - the complaint and the general diary entries, do not contain the seals or endorsements of the A.C.B. officials, though they were sent to them. Neither they were entered in the Station Dispatch Register, nor do they contain stamps or seals of Raptadu Police Station.
23. The prosecution tried to get over the contents of 164 Cr.P.C. statement through the evidence of P.W.3, but, in my view, they were unsuccessful in proving that it was at the behest of the accused officer. Probably, for this reason, they intentionally omitted to mark this statement, more so as it would demonstrate that the accused officer neither demanded nor accepted bribe from P.W.1. At this stage, it will be useful to refer to the evidence of the Investigating officer, who was examined as P.W.11, to fortify the above findings, wherein he deposed that he got the 164 Cr.P.C. statement recorded, in which P.W.1 categorically stated that the accused officer did not demand and accept the bribe. It will be proper to extract the relevant admissions in the evidence of the Investigating Officer, which is as under : -
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"I got recorded the 164 Cr.P.C. statement of P.W.1 and he categorically reported that the A.O. did not demand or accept that bribe."
24. Therefore, the evidence of P.W.3 and the admissions in the evidence of P.W.11, referred to above, amply establish that the version of P.W.1 in the earlier statement before the Magistrate was something different. In the absence of any other evidence and as P.W.1 did not support the prosecution case, which I have referred to earlier, it is clear that the prosecution failed to prove the demand by the accused officer.
25. Coming to the theory of acceptance of the money as bribe or as illegal gratification other than legal remuneration, the trial court, as observed earlier, itself has held that there is no direct evidence to show that P.W.1 paid Rs.500/- to the accused officer on 13.10.2000. But, under what circumstances was the tainted amount found in the pocket of the accused officer? Secondly, whether mere recovery of the tainted amount in the absence of any demand of bribe or payment of money by P.W.1 on 13.10.2000, can be sufficient to convict the accused?
26. As seen from the evidence available on record, more particularly the evidence of mediators and the Investigating Officer, money was not paid to the accused officer while he was in the office. It is the evidence of the mediator-P.W.2 that on 13.10.2000 at about 3.30 PM the entire trap party reached the house of the Work Inspector - Accused Officer. P.W.1 19 alighted from the jeep after receiving the instructions from D.S.P.; proceeded to the house of the Work Inspector, followed by the trap party, who took vantage positions in front of that house. Within few minutes after the complainant went inside the house, they noticed the accused officer coming out of that house and then proceeding on a T.V.S. Suzuki motorcycle towards northern side of that house. At that time, the complainant came out running and informed them that the person, who left on the motorcycle, is the accused officer, who received the bribe amount after demand (P.W.1 did not speak to this fact). It was also informed that the Work Inspector informed him that he has got an urgent work in the RTC bus stand. Then all of them followed him and reached near the western side entrance of the bus stand. There, they noticed the Work Inspector - accused officer coming out of the nursing home situated besides the bus stand, got on to his motorcycle and proceeded towards the western side. The trap party followed him in their jeep. The Work Inspector reached his office, opened the door and went inside, which is in the upstairs of that building. At that point of time, the raid party entered into the office and disclosed their identity. On instructions of D.S.P., one Inspector prepared sodium carbonate solution in two glass tumblers, into which, on asking by the D.S.P., the accused officer dipped his both hands fingers separately resulting in solutions turning pink in colour. When questioned, the accused officer failed to give 20 any explanation, but, however, took out money from his left side pocket and kept it on the table. The numbers of the notes tallied with the notes mentioned in the pre trap proceedings. The accused officer produced Form-30 and the Measurement book, which were shown in the post trap proceedings.
27. In the cross-examination of P.W.2, it was elicited that though they saw the accused officer coming out of the nursing home, did not intercept him. Only after the accused officer traveled a distance of 1 K.M. on his motorcycle and when he reached the office, the trap party entered the office and subjected the hands of the accused officer to phenolphthalein test. Suggestions were given to P.W.2 that the accused officer stopped his vehicle at Saptagiri Circle and purchased tender coconuts; went back to the nursing home to hand over the coconuts and then returned to his office, but, all the suggestions were denied.
28. But, fact remains that accused officer, from his house, first went towards the bus stand on his motorcycle and then to the nursing home; came out of the nursing home and then traveled a distance of 1 K.M. on his motorcycle so as to reach his office. No effort was made to intercept the accused while he left his house to go to the nursing home or when he came out of the nursing home. Further, there is no evidence on record to show that money was paid as bribe or otherwise to 21 the accused officer. The only version that is available is that of P.W.1, who states that he kept the money on a air cooler, in the house of the accused officer.
29. The explanation given by the accused officer was that he noticed Rs.500/- on the air cooler and thinking that his wife or mother must have kept it on the air cooler, took it and kept in his shirt pocket. The version given by the accused officer was suggested to all the witnesses including the Investigating Officer, but, the same was denied. Obviously, none of them have seen the said transaction, therefore, could not be in a position to depose as to whether money was on the air cooler or whether the money was paid by P.W.1 to the accused officer inside the house. But, at this stage, it is to be noted that the finding of the trial court, namely, that "no money was paid by P.W.1 to the accused officer on 13.10.2000" is staring at the prosecution. If no money is paid by P.W.1 on that day and in the absence of any evidence on record to show that the said amount was paid as bribe, can the accused be convicted merely because tainted amount was found in his pocket, more so, having regard to the version of P.W.1 (turned hostile). In other words, in the absence of any evidence that the accused officer received money as bribe pursuant to a demand made, can mere recovery of money from his pocket be sufficient to convict him, more so having regard to the explanation given.
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30. The learned counsel placed on record the evidence of D.Ws.1 and 2 to show that on the date of trap at 3.30 PM they went to the office of the accused officer, who enquired about the health condition of his daughter who was admitted in the said nursing home and when they were talking, the trap party entered the office and questioned him about the bribe amount. The version of D.Ws.1 and 2 was to the effect that accused officer informed them that he has neither demanded nor accepted the bribe amount from P.W.1 and that he found the currency notes on the air cooler and thinking that the same might have been kept by his wife or mother while going to the hospital, took the amount and kept the same in his pocket. But, however, the trial court rejected the same on the ground that the presence of these two witnesses was not suggested to mediators. But, one fact which is required to be noted is, that the presence of these two witnesses was suggested to the Investigating Officer, who denied the same, but, however, the search list, which is placed on record as Ex.P19, shows that the house owner i.e., D.W.1 attended through out the search. Be that as it may, as observed by us earlier, there was no demand and there was no acceptance of money pursuant to a demand and there is no evidence on record to show that an amount of Rs.500/- was paid as bribe on that day.
31. As seen from the evidence of the Investigating officer (P.W.11) and the mediator - P.W.2, few facts which emerge 23 out are, no effort was made by the raid party to intercept P.W.1 when he was going on motorcycle to his office from the nursing home. They simply followed him. Even assuming that the time was not enough to intercept him at that point of time, nothing prevented them to intercept when he came out of the nursing home. The evidence of the mediator itself shows that the accused officer traveled a distance of 1 K.M. in his motorcycle before he reached the office. No explanation is forthcoming as to why they simply followed the accused officer without apprehending him.
32. Coming to the fact that hands of the accused officer turned positive to the phenolphthalein test, no test was conducted to the handle or the grip of the motorcycle which he rode from the home to nursing home and then to the office. May be it is a minor circumstance, but, in the circumstances of the case it would have been a crucial aspect.
33. In these circumstances it will be appropriate to refer to the judgment of the Apex court in Krishan Chander v. State of Delhi1. It was also a case where the complainant did not support the prosecution case and the court, after referring to 313 Cr.P.C. examination of the accused officer and taking into consideration the fact that evidence on record does not 1 AIR 2016 SC 298 24 establish that there was any demand of bribe by the appellant from the complainant. The court held as under :-
"34. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable Under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior Counsel on behalf of the Appellant. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus:
"7. Insofar as the offence Under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence Under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. and C.M. Girish Babu v. CBI. In the case of P. Satyanarayana Murthy (supra), it was held by this Court as under:
"21. In State of Kerala and Anr. v. C.P. Rao, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence Under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal 25 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 proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence Under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence Under Section 7 and not to those Under Section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption Under Section 20 of the Act would also not arise.
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence Under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence Under Sections 7 or 13 of the Act would not entail his conviction thereunder."
35. Further, in the case of Satvir Singh v. State of Delhi [(2014) 13 SCC 143], this Court has held thus:
"34. This Court, in K.S. Panduranga case has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the abovesaid decision is extracted hereunder: (SCC pp. 740-41, para 39) "39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption Under Section 20 of the Act which can be dislodged by the 26 accused by bringing on record some evidence, either direct or circumstantial, that money was accepted other than for the motive or the reward as stipulated Under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation Under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted."
34. From the judgment referred to above it is very much clear that even if there is recovery of money, but presumption that it was accepted as illegal gratification would follow only if there is proof of demand and accordingly it was held that in the absence of proof of demand, such legal presumption under Section 20 of the Act would also not raise.
35. Similar such view was taken by the Apex Court in C.M. Girish Babu v. C.B.I. Cochin2; B. Jayaraj v. State of Andhra Pradesh 3 and V.Sejappa v. State4.
36. In State of Kerala and Anr. v. C.P. Rao 5 the Apex court held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corroboration of the testimony of the complainant regarding the demand of bribe.
2 AIR 2009 SC 2022 3 (2014) 13 SCC 55 4 AIR2016SC2045 5 (2011) 6 SCC 450 27
37. It was held in Mukut Bihari and Anr. v. State of Rajasthan6 that the demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. The Court held that though the burden is on the accused under Section 20 of the 1988 Act to displace the statutory presumption, but, at the same time, held the explanation offered by the accused, if any, can be accepted on the touchstone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. It was further held that before the accused is calling upon to explain as to how the amount was found in his possession, the foundational facts must be established by the prosecution.
38. In Suraj Mal v. State (Delhi Admn.)7, the 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 6 (2012) 11 SCC 642 7 (1979) 4 SCC 725 28 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.
39. In Punjabrao vs. State of Maharashtra 8 the Apex court held as under :
"It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability."
40. In view of the judgments of the Apex Court referred to above, the prosecution has to lay the foundational facts that there was demand of money and the acceptance was in pursuance to a demand made and the said acceptance was by way of a demand by the accused officer. In the instant case, as stated above, neither of the two ingredients are proved. Even if the explanation offered by the accused officer is discarded, for the sake of argument, still that by itself, in my view, is not sufficient to convict the accused.
41. At this stage, Sri S.M.Subhani, learned Standing Counsel for A.C.B., represented that when there is official favour pending, a presumption can be drawn that it was accepted towards bribe. But, the existence of official favour 8 (2002 )10SCC 371 29 also appears to be doubtful. As seen from the record, P.W.6, who in her evidence, categorically deposed that the entire construction was under her supervision. Her evidence shows that on the date of inspection of the house by the accused officer, no plastering was done inside the house and latrine was also not fixed. Two months thereafter, the work was completed and thereafter, she sought for release of the amount. There is no evidence on record to show that any of the officials of the Corporation visited the house of P.W.6 to find out whether the work was completed.
42. Of course, representations were made for release of the amount on the ground that the work was completed, but when the evidence of P.W.6 is to the effect that she herself supervised the work and Rs.4,000/- has to be received by her, the evidence of P.W.1 and other witnesses run contra to the same. While the evidence of P.W.1 is to the effect that he has spent money from his own pocket and that he is entitled to receive a sum of Rs.4,500/-, the same is contrary to the evidence of P.W.6. The evidence of P.W.5, who was the Assistant Engineer in the office of Singanamala Section of A.P. Housing Corporation, Anantapur, was to the effect that P.W.6 has to be paid a cash of Rs.7,795/- and that she has not completed the work worth of Rs.3,975/- and that amount was not paid and will be paid after completion of the said left over work. It will be useful to extract the relevant portion in the chief-examination of P.W.5, which is as under : 30
"The total construction value assessed by me was Rs.13,000/- including the cost of the material supplied by us Rs.5,205.00 and I noted that she has to be paid cash of Rs.7,795/-. Because she has not completed some more work worth Rs.3,975/-, that amount was not paid and which will be paid only after the completion of the said left over work."
43. In the cross-examination, P.W.5 admits as under :
"Meddi Venkatamma personally took from our godown, cement, bricks and W.C. panal and she has personally executed the work of construction of her house. Venkatamma has personally went to the bank and received the amount as no one can withdraw her amount from that bank. The balance work I said she has not done is plastering of the inside walls of the house and construction of lavatory. She alone was looking after the construction work of her house and she did not authorize any one."
44. From the evidence of P.Ws.5 and 6 it goes to show that the amount claimed or amount to be returned or that the amount to be paid is not same. It is varying from witness to witness. Further, the charge and the case of the prosecution is that it was P.W.1, who was demanding payment of money spent by him, but, the evidence of P.W.6 runs contra to the case of the prosecution. Therefore, it is difficult to say that there was an official favour pending with the accused officer, as the work at the site was not complete, when P.W.5 & others inspected the premises. Hence, I am of the view that benefit of doubt can be given to the accused officer.
45. Having regard to the aforesaid reasons, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant - accused officer, for the offences 31 punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act in C.C. No.27 of 2001 on the file of the Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, by judgment dated 31.08.2006, is set aside. The appellant - accused officer is acquitted and he shall be set at liberty forthwith, if he is not required in any other case. Fine amount paid, if any, shall be refunded to the appellant - accused officer.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR Date : 22.01.2021 skmr