Andhra Pradesh High Court - Amravati
R. Jagadeswara Reddy, vs The State Of A.P., on 31 December, 2021
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Criminal Appeal No.1581 of 2007
JUDGMENT :
1. Assailing the conviction and sentence in C.C.No.9 of 2003, dated 15.11.2007, by the Additional Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad, wherein the appellant was convicted under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.2,000/- under each count, the present appeal is filed under Section 374 Cr.P.C.
2. The substance of the charge against the accused officer is that, while he was working as Prohibition & Excise Inspector, Penukonda, demanded and accepted a sum of Rs.5,000/- from Chintala Jayachandra on 27.4.2002, as illegal gratification, other than legal remuneration, for doing a favour of not booking any case and conduct raids on his shop.
3. The facts in issue are as under :
Since the principal witness i.e., P.W.1 did not support the prosecution case, certain facts, as mentioned in the charge-sheet, are required to be mentioned for understanding the prosecution case. P.W.1 was working as a salesman at 2 Yaswanth Wines, Somandepalli, Penukonda, Anantapur District. The licence for the said wine shop was in the name of one Mallikarjuna (P.W.5), but the business was transacted by one Ramakanth Reddy (P.W.4). The accused officer was working as Inspector, Prohibition & Excise, Penukonda, at the relevant point of time. On 25.4.2002, the accused officer is alleged to have gone to the wine shop and demanded a sum of Rs.5,000/- as illegal gratification from P.W.1, for doing a favour of not booking cases against the wine shop. He was informed that if amount is not paid, he will conduct raids on the shop and book cases leading to cancellation of licence. It is said that the complainant (P.W.1) expressed his inability to pay such huge bribe as business was not good and also as the owner was away from the village. But, however, the accused officer insisted on payment of bribe of Rs.5,000/-. Further, the accused officer is alleged to have demanded P.W.1 to come to his house by the evening of 27.4.2002 with the bribe amount. As P.W.1 was not willing to pay any bribe, he proceeded to the office of Dy.S.P., A.C.B., Anantapur and preferred a oral complaint on 26.4.2002 at 3.00 PM. The same was reduced into writing by the Inspector of Police, A.C.B., Anantapur (P.W.13). The contents were read over to the complainant, who admitted it to be true. Ex.P17 is the said statement. After receiving the complaint, P.W.6 asked P.W.1 to come to A.C.B. office on 3 27.4.2002 at 4.00 PM along with the proposed bribe amount of Rs.5,000/-. Meanwhile, the antecedents of the accused officer and the genuineness of the complaint were verified.
After obtaining permission, P.W.6 registered a case in crime No.3/ACB-ATP/2002 under Section 7 of the Act and issued F.I.R., which is placed on record as Ex.P18. On the next day at 4.00 PM, P.W.1 is said to have appeared before P.W.6, by which time he secured the presence of P.W.2 and one Sankarappa to act as mediators. The pre-trap proceedings were conducted in his office between 4.30 PM and 6.45 PM. During the said proceedings, P.W.1 was introduced to the mediators and they were asked to enquire about the contents of the complaint. Thereafter, P.W.1 produced Rs.5,000/-, consisting of two (2) five hundred rupee notes and thirty one (31) hundred rupee notes and eighteen (18) fifty rupee notes. One of the mediators noted down the serial numbers of the notes in the first mediators' report, which is placed on record as Ex.P6. Thereafter, demonstration about the phenolphthalein test was conducted and the significance of the same was explained to P.W.1. P.W.6 instructed one Police Constable to apply phenolphthalein power on the bribe amount and thereafter the amount was kept in left side shirt pocket of P.W.1, with a caution that he has to remove the notes from his pocket only on demand made by the accused officer and not otherwise. He was also asked to come out and 4 give a signal by wiping his face with lungi in a bending position on acceptance of money by the accused officer. After completing the pre-trap proceedings and taking the precaution that the hands of the trap party members do not have any traces of phenolphthalein powder, the entire trap party, including P.W.1, left the A.C.B. Office at 7.00 PM in a Government vehicle, and reached Penukonda at 9.00 PM. The vehicles were stopped at Satalingeswara Alayam. P.W.1 and one P.C. were asked to get down from the jeep and proceed towards the residence of the accused. Except P.W.1 all others took vantage positions. P.W.1 was further instructed that he has to pay the money only on demand and not otherwise.
4. It is alleged in the charge-sheet that on 27.4.2002 at about 9.00 PM when P.W.1 met the accused officer at his residence at Penukonda, the accused officer reiterated his earlier demand and accepted the bribe amount of Rs.5,000/-. On receipt of the signal from P.W.1, the trap party, including P.W.2, rushed to the house of the accused officer and noticed P.W.1 in front of the house of the Inspector. He was asked to stay there until he was called. They also noticed the accused officer sitting on a sofa with lungi and a towel on the shoulder. The Dy.S.P. introduced himself to the accused officer and also introduced P.W.2 to the accused officer. P.W.6 instructed accused officer to keep the hands apart and 5 then got prepared two fresh sodium carbonate solutions in two glass tumblers and directed the accused officer to rinse his right and left hand fingers separately in both the solutions, which turned pink in colour. M.Os.3 and 4 are resultant solutions. When Dy.S.P. asked the accused officer about the money received, he led P.W.2 and Dy.S.P. to an adjacent room, picked up his pant, which was to an anchor and took out a bunch of currency notes from the right side pocket. The numbers of the notes were verified, which tallied with those mentioned in the pre-trap panchanama. M.O.5 is the seized currency notes. The explanation offered by the accused officer was incorporated in the proceedings. The inner lining of the right side pant pocket of the accused officer, when rinsed in sodium carbonate solution, also turned pink in colour. M.O.6 is the sealed bottle containing the resultant solution. M.O.7 is the pant from which the currency notes were recovered. Thereafter, the complainant - P.W.1 was called inside and he was asked to explain as to what happened after he left the trap party and before he gave signal. His statement was incorporated in the post-trap panchanama, which is placed on record as Ex.P8. P.W.6 also examined one, Vijayalakshmi, who is wife of accused officer and also one, Smt.Bharathi, who is wife of K.V.Subba Reddy. Their version was also incorporated in Ex.P8. The Dy.S.P. also prepared an observation of the scene and a rough sketch 6 of the scene. At this stage, it is to be noted that the entire pre-trap and post-trap proceedings were conducted under the supervision of P.W.13, the Inspector of Police. Later, he took over the investigation from P.W.6 and examined P.Adinarayana Reddy and one S.Ramakantha Reddy (P.W.4) and recorded their statements. He also examined P.W.5 and recorded his statement on 5.6.2002. P.W.14, the Sub-Divisional Police Officer took over further investigation. He verified the investigation done and after obtaining sanction order vide G.O.Ms.No.133, dated 1.2.2003, filed charge sheet, which was taken on file as C.C.No.9 of 2003 by the Additional Special Judge for SPE and ACB Cases-cum- V Additional Chief Judge, City 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, to which he pleaded not guilty and claimed to be tried.
5. The plea of the accused is one of denial. In support of its case, the prosecution examined P.Ws.1 to 14 and got marked Exs.P1 to P28. Out of 14 witnesses examined by the prosecution, P.Ws.1, 4, 5, 7, 8, 9, 10, 11, 12 did not support the prosecution case and they were treated hostile by the prosecution. After completing the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing 7 against him in the evidence of the prosecution witnesses, to which he denied. In support of his case, he examined D.Ws.1 to 4 and got marked Ex.D1 and also got marked Exs.X1 and X2. Believing the evidence of the prosecution, namely, that the accused officer has accepted the money for doing an official favour, the trial Court convicted the accused as stated supra. Challenging the same, the present appeal came to be filed.
6. Sri M.B.Thimma Reddy, learned counsel for the appellant, would submit that there is absolutely no legal evidence available on record to connect the accused with the crime. According to him, the prosecution failed to prove the theory of demand and acceptance of money as bribe. He further pleads that there is any amount of doubt with regard to the presence of the accused officer in Penukonda on the date of acceptance of the money, as the General Diary and Tour Diary (Exs.P25 and P26) clearly indicate that the accused officer left Penukonda at 8.20 AM and returned at 9.30 PM. Such being so, it is urged that, the presence of the accused in the house at that time is doubtful. He would further contend that a perusal of Ex.X2 would show that some other persons were present at the time of trap, which fact is admitted by the Investigating Officer in his evidence and that they would have been best persons to speak as to what happened on that day. He further submits that there is 8 no evidence on record to show whether there was any official favour pending. According to him, the amount alleged to have been demanded for not booking any cases is difficult to believe. He also took us through the evidence of P.Ws.1, 2, 3 and 4 to show that this amount, which was recovered from the accused officer's pant pocket, was repayment of hand loan.
7. He would further contend that, after receiving a complaint from P.W.1, no verification of the antecedents of P.W.1 was done. This fact assumes importance as the First Information Report, which was dispatched on 27.4.2002, reached the Court on 29.4.2002. He would further submit that since P.W.1 did not support the prosecution case, the theory of demand and acceptance remained unproved and once the demand is not proved, mere acceptance of money/recovery of money, even if believed, does not by itself amount to acceptance of money as illegal gratification. Learned counsel for the appellant placed reliance on number of decisions, which I will discuss later.
8. On the other hand, Sri S.M.Subhani, learned Standing Counsel for A.C.B., appearing for the respondent-State, would contend that merely because P.W.1 did not support the prosecution case, the same does not by itself mean that there was no acceptance of money as illegal gratification, 9 more so, when P.W.1 admits his signature on Ex.P1. To the plea that there was no favour, which the accused officer could have extended to P.W.1, he would submit that the evidence of P.W.1 indicates the accused officer visited the shop of P.W.1 and verified the books. Such being the position, the version of the prosecution that P.W.1 demanded the amount for not booking any cases cannot be said to be false. Sri S.M.Subhani, learned Standing Counsel for A.C.B., would further contend that if really the amount paid was repayment of any loan, there was no necessity for P.W.1 to take Dy.S.P. and trap party along with him. He could as well gone all alone to Penukonda to repay the money. In view of the judgments of the Apex court in N. Narsinga Rao vs. State of Andhra Pradesh1 and other judgments which will be referred to and discussed later, the counsel would contend that the conviction awarded by the trial court requires no interference.
9. Now, the point that arises for consideration is, whether the prosecution was able to bring home the guilt of the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 beyond reasonable doubt?
1 2001 CrlLJ 515 10
10. In order to appreciate the rival arguments it would be necessary to refer to the evidence available on record and the judgments of the Apex Court in that regard. It is well established principle of law that in order to prove the offences punishable under Sections 7 and 13 of the Prevention of Corruption Act, the prosecution has to prove demand and acceptance of money and existence of an official favour for accepting the money.
11. As per the case of the prosecution, the accused officer is said to have demanded the money on 25.4.2002, but strangely charge-sheet is silent as to when the accused officer demanded money on 25.4.2002. Even report given by P.W.1 is silent as to the time when the accused officer demanded the amount of Rs.5,000/- from P.W.1. The "time of demand" assumes significance for the reason that the case of the appellant is that he was not in office on that day, which is sought to be established through the evidence of P.Ws.7 to 12 and Ex.X1, which I will discuss later.
12. In order to prove the theory of demand, the prosecution mainly relied upon the evidence of P.W.1, P.W.6 and the mediators. P.W.1 was working as a salesman in M/s.Yaswanth Wines, Somandepalli, since seven years. The license to the said shop was in the name of Mallikarjuna (P.W.5). Adinarayana Reddy (not examined) was also a 11 salesman in the said wine shop. P.W.5 is said to have executed Noukarnama in the name of P.W.1 and Adinarayana Reddy. According to him, on 25.4.2002, he was present in the wine shop and no body came to the wine shop and did anything. Though he does not remember the date but states that excise official Inspector visited their wine shop, inspected the account books and left. He denies giving a complaint to the A.C.B., Anantapur, but states that original statement shown to him belongs to him and it bears his signature. ExP1 is the signature. According to him, he signed the complaint on the instructions of Adinarayana Reddy and other salesman in the wine shop. He further states that on asking of Adinarayana Reddy he went to the office of A.C.B., Anantapur along with him. He also says that Adinarayana Reddy gave money of Rs.5,000/- stating that it was given by one Ramakantha Reddy asking him to pay the amount to accused officer, which he owes to accused officer's father-in-law. At that stage, the witness was declared hostile.
13. There is no other evidence available on record with regard to the demand by the accused officer on 25.4.2002. In the cross-examination by the learned Public Prosecutor it was suggested to him that on 25.4.2002 the accused officer inspected the wine shop and demanded payment of Rs.5,000/- as bribe, failing which he will book cases and see that the license is cancelled, but the same was denied by 12 him. To a suggestion that he represented to the Investigating Officer that the owner is not available and that the business was not running well for payment of the bribe amount was also denied by him. He also denied the suggestion that accused officer asked him to come to his house in the evening of 27.4.2002 to pay the demanded amount. He also denied the suggestion that he was not willing to pay the bribe amount to accused officer and that he went to Dy.S.P., A.C.B. office and lodged a report. He also denied that his statement was recorded by the Inspector in the office of A.C.B., read over to him and only then he signed. He denies the entire proceedings which took place on 27.4.2002. He denied the suggestion that the version given by him in chief examination that it was Adinarayana Reddy who took him to A.C.B. office and that he has given the amount of Rs.5,000/- to him to be paid to accused officer towards repayment of hand loan by Ramakantha Reddy to his father-in-law as false. However, he admits that on 27.4.2002 they all started in a Government vehicle from the A.C.B. Office, Anantapur to go to Penukonda and reached Penukonda at 9.00 PM. However, he denies the suggestion with regard to the accused reiterating his demand on seeing P.W.1 and the receipt of money by accused officer with his right hand, changed it to left hand, took the amount into his right hand again and then kept in the right side pant's pocket, but, however, admits that he gave the amount 13 to accused officer to give it to father-in-law Konda Reddy, but the accused officer did not receive it. He then pleaded with accused officer to receive the money as it was already 9.00 PM. Only then, accused officer received it. At that time three persons were present. After paying the amount, P.W.1 claims to have left that place, but, however, denied the suggestion of giving a pre-arranged signal.
14. To a suggestion namely, "when you said that the amount was given to you by Adinarayana Reddy to be paid to the accused officer towards the repayment of loan Ramakantha Reddy owes to the father-in-law of the A.O., where was the necessity for you and can you explain why you have gone along the DSP and other officials in their jeep from Anantapur to the A.O's house at Penukonda", P.W.1 answered that, "Because he went along with Adinarayana Reddy to the DSP, ACB's Office at Anantapur and there he was requested to go along with the DSP and his party who is known to him, he went along with them to Penukonda to the house of the A.O." In the cross-examination by the counsel for the accused he reiterates his version that accused officer never visited the shop casually and whenever he visited, he inspected the records and made endorsements. He further admits that accused officer seized the non-duty paid liquor being transported from Karnataka State belonging to the brother-in-law of Adinarayana Reddy, by name, Narasimha 14 Reddy and in that matter Adinarayana Reddy went to the excise office and accused officer asked him to get away and over that matter there were differences between them. He further states that there were three persons present in the house of the accused officer. Among them, Anjan Reddy and Venugopal are Ex.V.D.Os. and Sivaiah is a Hotel Proprietor. When he went to the house of the accused officer, he asked him the purpose of his visit and he told him that Ramakantha Reddy sent him to hand over an amount which he owes to Konda Reddy, his father-in-law. Though the accused officer refused to receive the amount, P.W.1 insisted for receipt of the money stating that it is already 9.00 PM and that he will miss the bus and on that accused officer is said to have received the amount.
15. This, in substance, is the evidence of P.W.1 with regard to the demand and acceptance. As stated earlier, he resiled from his earlier statement and as such, there is no material to show that there was demand on 25.4.2002.
16. Counsel for the respondent would submit that the fact that there was demand can be inferred from the contents of the First Information Report, since P.W.1 did not dispute his signature on the complaint and the evidence of mediator, who deposed about reading out the contents of the report to P.W.1 wherein he admitted the contents to be true. 15
17. It is a well established fact that merely because P.W.1 admitted his signature on a complaint and even if he says that original complaint shown to him belongs to him, but unless the contents of the complaint are spoken to in Court, the same has no evidentiary value. It is well established principle of law that contents of the first report can only be used to contradict/corroborate the maker and nothing more than that. But, however, Sri S.M.Subhani, learned Standing Counsel for ACB, would contend that in view of presumption under Section 20 of the Prevention of Corruption Act and having regard to the law laid down by the Apex Court in the judgments relied upon by him, pleads that an inference can be drawn that there was a demand.
18. Sri M.B.Thimma Reddy, learned counsel for the appellant, relied upon the judgments of the Apex Court in Sejappa v. State2; B.Jayaraj v. State of Andhra Pradesh3; N.Sunkanna v. State of Andhra Pradesh4; Krishan Chander v. State of Delhi5; C.M.Girish Babu v. C.B.I.6; Mukhtiar Singh (since deceased) through His Legal Representative v. State of Punjab7 and 2 AIR 2016 SC 2045 3 2014 (2) ALD 73 SC 4 AIR 2015 SCW 6764 5 AIR 2016 SC 298 6 AIR 2009 SC 2022 7 (2017) 8 Supreme Court Cases 136 16 P. Satyanarayana Murthy v. District Inspector of Police and Anr.8, in support of his plea.
19. Sri S.M.Subhani, learned counsel for ACB, relied upon the two judgments delivered recently by this Hon'ble Court and the judgments of the Apex Court in M.Narasinga Rao v. State of Andhra Pradesh9; The State, rep. by C.B.I. v. G. Prem Raj 10 and T.Sankar Prasad v. State of Andhra Pradesh 11 to show that mere recovery of the money and hands turning positive to phenolphthalein test would amply establish the receipt of money is pursuant to demand. In fact, Sri S.M.Subhani mainly relied upon the judgment of the Apex Court in M.Narasinga Rao's case (supra) in support of his plea.
20. Before dealing with the said aspect, it is to be noted that the issue as to whether demand has to be proved when the money is recovered from the accused and when the hands turned positive to phenolphthalein test was referred to a larger bench by the Apex Court in Neeraj Dutta v. State (Government of NCT of Delhi)12. But, since the issue is still pending, we intend to discuss the law laid down by the Apex Court in the judgments referred to above.
8
(2015) 10 SCC 152 9 (2001) 1 Supreme Court Cases 691 10 (2010) 1 SCC 398 11 2004 3 SCC 753 12 (2019) 14 SCC 311 17
21. The judgment in M.Narasinga Rao's case (supra) was by a Bench of Three Judges, wherein the Hon'ble Apex Court held that a presumption under Sub-Section (1) of Section 20 of Prevention of Corruption Act can be drawn when tainted currency notes were recovered from the accused officer and in the absence of any explanation for the same. But, subsequently, in two more Three Judge Benches judgments, it was opined that presumption under Section 20 cannot be drawn unless the prosecution proves demand of bribe.
22. Before dealing with the said judgments it is to be noted, as stated earlier, P.W.1 did not anywhere depose about the demand of money by the accused officer. He even did not speak to the contents of the report, except stating that it bears his signature. He gives an explanation as to circumstances under which he signed his signature which indicate that he was not even aware about the contents of the same, since it was signed at the instance of one Adinarayana Reddy, who was salesman in the wine shop and with whom the accused officer had some grievance. P.W.13, Investigating Officer, in his evidence categorically admits that, neither himself nor the D.S.P., A.C.B., obtained any endorsement from P.W.1 in token of having read over the contents of Ex.P1 to him and he admitted the same to be true. His evidence also shows that this F.I.R. was received by the Court after the trap was over. Therefore, the argument of 18 the learned counsel that this F.I.R. came to be introduced at a belated stage at the instance of others and that P.W.1 was not aware of the contents, except his signature, cannot be brushed aside, having regard to all the circumstances referred to earlier.
23. In B.Jayaraj v. State of A.P.13 a three Judge bench of the Apex Court dealt with the similar issue where P.W.2, the complainant therein, did not support the prosecution case and he disowned making the complaint and on the other hand stated in his deposition that the amount of Rs.250/- was paid by him to the accused with a request that the same may be deposited in the bank for fee for renewal of his licence, hence, he was declared hostile. The panch witness was examined as P.W.1 after being summoned by K.Narsinga Rao on 13.11.1995. The contents of the complaint filed by P.W.2 were explained to him in the presence of the complainant, who acknowledges the fact that the accused- appellant had demanded Rs.250/- as illegal gratification for release of previous items. It is on the aforesaid basis that the liability of the appellant for commission of the offences alleged was held to be proved, notwithstanding the fact that in his evidence the complainant not supported the prosecution case. The trial court, as well as High Court, relied upon Section 20 of the Prevention of Corruption Act to 13 2014 (2) ALD (Crl.) 73 (SC) 19 draw a legal presumption as regards the motive or reward for doing or forbearing to do any official act after finding acceptance of illegal gratification by the accused-appellant. Referring to the judgments in C.M.Sharma v. State of A.P. 14 and C.M. Girish Babu v. C.B.I.15 the three Judge Bench in B.Jayaraj's case held that demand of illegal gratification is sine qua non to constitute the said offence under Section 7 and mere recovery of money cannot constitute an offence under the said section, unless it is proved beyond all reasonable doubt that the amount was accepted as bribe. The Court went on to hold that presumption under Section 20 can be drawn only in respect of offences under Section 7 and not for the offence under Section 13(1)(d)(i)(ii) of the Act, since 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. Since the same is lacking, the Court held that no presumption can be drawn and accordingly set aside the conviction under both counts.
24. Later on, in N.Sunkanna v. State of Andhra Pradesh16 the two Judge Bench, after referring to the judgment of the Apex Court, acquitted the accused where 14 (2010) 15 SCC 1 15 (2009) 3 SCC 779 16 2016 (1) ALD (Crl.) 230 (SC) 20 complainant disowned his complaint and turned hostile. The court went on to hold that mere possession and recovery of the currency notes from the accused without proof of demand will not constitute an offence under Section 7 and no presumption can be drawn.
25. Similarly, in Krishan Chander v. State of Delhi17, the Apex Court, after referring to State of Kerala and Others v. C.P. Rao's case (supra); B.Jayaraj's case (supra); A. Subair v. State of Kerala18; P.Satyanarayana Murthy's case (supra); V.K. Mishra v. State of Uttarakhand19; Satvir Singh v. State of Delhi 20 held that in the absence of any material to show that it was the appellant who demanded bribe money from the complainant and as the complainant turned hostile, thereby prosecution failed to prove demand and acceptance by the appellant, which is sine qua non for constituting an offence under Sections 7 and 13(1)(d) read with Section 13(2) of the P.C. Act, acquitted the accused.
26. Similarly, in Mukhtiar Singh's case (supra) the Apex Court, after referring to the judgments of P.Satyanarayana Murthy's case (supra); B.Jayaraj's case (supra); A. Subair's case (supra); State of Kerala and Others v. 17
AIR 2016 SC 298 18 (2009) 6 SCC 587 19 (2015) 9 SCC 588 20 (2014) 13 SCC 143 21 C.P. Rao's case (supra) categorically held that mere recovery by itself is not sufficient unless the demand is proved. It was a case where, though the complainant did not turn hostile, but the answers elicited in the cross-examination show that he was not able to mention the date on which the demand was made. He denied suggestion that there was neither demand for illegal gratification by the accused nor any sum was accepted by him. It was also a case where shadow witness-P.W.2 supported the prosecution case with regard to the acceptance of money. But, however, there was discrepancy as to whether he and P.W.1 met the accused and also the place where the card board box was lying on the table of the accused. In the circumstances where the demand and acceptance of illegal gratification seems to be unusual, more particularly with regard to the location of the transaction, the Court held that the same cannot be made the basis to convict the accused.
27. In view of the above, the two judgments of this Court, relied upon by Sri S.M.Subhani, learned standing counsel for the ACB, may not come to his rescue.
28. From the evidence adduced by the prosecution it is to be noted that even in the instant case, as observed earlier, P.W.1 never spoke about any demand and though he says in chief that he did not give any complaint to A.C.B., 22 Anantapur, he deposed that the original complaint shown to him belongs to him and it bears his signature, but, in the very next sentence he gives a go bye to the said version stating that on the asking of Adinarayana Reddy he went to the office of the A.C.B., Anantapur and thereafter at the instance of Adinarayana Reddy he signed on the complaint. He was not made to speak to the contents of the report. The suggestions given to the witness by the learned Public Prosecutor in the cross-examination with regard to the contents of the report, more particularly the accused demanding bribe, were denied by him. Though the case of the prosecution, as per the charge-sheet, is that accused demanded bribe on 25.4.2002, but, there is no reference to the demand on 25.4.2002. As seen from the record, all the suggestions given were denied. This fact situation squarely falls with the facts in B.Jayaraj's case (supra) and it can be said that the prosecution failed to prove the demand.
29. At this stage, learned Public Prosecutor would contend that since the evidence of P.W.1 would show that the Excise Inspector visited the shop on 25.4.2002, a presumption can be drawn that there was demand on 25.4.2002, but, P.W.1, in his evidence, only deposed that he was present in the wine shop on 25.4.2002 and no body came to the wine shop and did anything. In the next sentence he categorically states that he does not remember the date, but excise Inspector Sri 23 Jagadiswar Reddy visited the wine shop. He further says that he visited the wine shop, inspected the books and left. A reading of the said sentences does not indicate that the accused officer visited the shop on 25.4.2002. This part of the evidence does not show that there was any demand for money on that day.
30. At this stage, one other issue, which requires to be noted, is that, the accused has placed on record the evidence of P.Ws.7 to 12, coupled with Ex.X1 and Exs.P25 and P26 to show that the accused was not in Penukonda on 25.4.2002. P.Ws.7 to 12 are the residents of the villages of Roddam Mandal, who were examined by the prosecution to show that no meeting was held on 22.4.2002 or on 25.4.2002 with regard to the propaganda made by the Excise Inspector relating to non-consumption of I.D. liquor. All these witnesses did not support the prosecution case and were treated hostile. On the other hand, they categorically deposed about holding of meeting in the village by the accused officer on 25.4.2002. At this stage, it is to be noted that Ex.X1 is a letter written by the accused officer to the Prohibition & Excise Superintendent, Anantapur, dated 25.4.2002. Of course, that was dispatched little later, but the contents of the letter indicate that on 25.4.2002 at about 5.30 he along with his staff proceeded to Kambalapalli Village of Roddam Mandal to discuss about the prevention of illicit 24 distilled liquor and arrack with the elder people of the village. The entries in the diary dated 25.4.2002 show accused along with the staff left the police station and raided the villages mentioned in column and met the Sarpanches and mediators requesting them to participate in Grama Sabha to discuss the evils of consuming I.D. liquor and also took oath from the people of Kambalapalli that they should not allow transportation of I.D. liquor and arrack into their village. It also speaks about reaching Penukonda at 9.30 PM.
31. Though Sri S.M.Subhani tried to contend that this document is brought into existence after the trap, but, it is to be noted that this document contains entries dated 26.4.2002 and 27.4.2002 and also subsequent dates. Therefore, definitely the same could not have been brought into existence at a later point of time. Further, such a suggestion never came forward from the prosecution, namely that this document was prepared to suit the prosecution case. In fact, Exs.P25 and 26 the two documents produced by the prosecution, namely, general diary and tour diary indicate that the accused was on tour on that day i.e., he left at 8.20 AM and returned at 9.30 PM. Further, it is to be noted that though prosecution themselves filed memo, for examining 19 villagers, but, for the reasons best known, they examined only 6 witnesses and none of them supported the case of the prosecution. The two diaries coupled with the 25 evidence of Investigating officer indicate that the accused officer was not in the headquarters on that day. Therefore, the case of the prosecution that the accused made a demand on 25.4.2002 by visiting the wine shop appears to be suspicious.
32. Coming to the acceptance of money, the evidence of P.W.1 is that Ramakantha Reddy gave an amount of Rs.5,000/- to him through Adinarayana Reddy so as to give the same to accused officer, which he owes to accused officer's father-in-law. In order to repay the said amount, P.W.1 claims to have gone to the house of the accused and thereafter paid the amount to him.
33. P.W.2, the mediator, in his evidence deposed that on receipt of signal from the constable, by name, Sreeramulu (not examined), they rushed into the house of the Inspector and noticed P.W.1 in front of the house of the Inspector, while the accused was sitting on a sofa in a lungi with a towel on his shoulder. After introduction, the hands of the accused officer were subjected to phenolphthalein test, which turned into pink colour. When questioned as to where he kept the amount, the accused officer led them to adjacent room, picked up his pants on the hanger and took out a bunch of currency notes from the right side pants' pocket. Thereafter, mediators verified and tallied the numbers of the notes 26 written in panchanama. The wife of the accused officer and also one, Smt.Bharathi, wife of K.V.Subba Reddy, who were present in the house, were also examined, but they stated that they have not witnessed anything as they were inside the kitchen room. Suggestions given to P.W.2 that the money was never accepted as bribe and that the explanation given by the accused officer was not recorded in the panchanama were denied by him. However, he admits that at the time of search, there were some other persons present with the accused officer.
34. The evidence of the Investigating Officer also shows that at the time of the alleged trap there were two V.D.Os., namely, Anjan Reddy and Venugopal and Hotel Proprietor, by name, Shivaiah, which is evident from the evidence of P.W.13, the Investigating Officer, who, in the cross- examination, admits presence of these three persons in the house of accused officer on the date of trap.
35. Though the Investigating Officer admitted that he has not examined any of these three persons, but, they were examined as D.Ws.1 and 2, wherein both of them categorically deposed that P.W.1 told that P.W.4 has sent the money to be given to Konda Reddy, father-in-law of accused officer. At that time, accused officer is said to have stated that Konda Reddy was not available in the house as he went 27 into the town and asked P.W.1 to wait. Then, P.W.1 requested the accused officer to take the money and hand over the same to his father-in-law, for which, accused officer asked him to wait for sometime, so that he may personally give it to Konda Reddy. After few minutes, P.W.1 requested the accused officer to take the money and give it to his father-in-law, as the bus to his village might go away. So saying, P.W.1 gave a wad of currency notes stating that it is Rs.5,000/-, requesting him to hand over the same to his father-in-law. The accused officer took the said amount, went into the room, came back and sat on the cot. Thereafter, two persons came to the house of accused officer, caught hold of both hands and conducted tests. His evidence also shows that when D.S.P. questioned the accused officer, he stated he did not demand or accept any bribe from P.W.1 and he also requested D.S.P. to verify the facts from D.Ws.1 and 2. It is said that D.Ws.1 and 2 informed D.S.P. all the facts, but, however, their statements were not incorporated in the panchanama. The purpose for which D.W.1 was at the house is evident from Ex.D1, the Marriage Invitation Card given by him to Konda Reddy. Though D.Ws.1 and 2 were asked to wait, but, the Investigating Officer did not record their statements. However, in the cross-examination he denies the suggestion that he did not see P.W.1 handing over cash to accused officer. To a suggestion that what all he 28 deposed in chief in favour of accused officer is false, was denied by him. He also denied a suggestion that he did not go to the house of the accused along with Sivaiah and Anjan Reddy on 27.4.2002 at 9.00 PM.
36. Similar is the version of D.W.2, who is also a Village Development Officer. All the suggestions given in cross- examination were denied by him. In fact, both D.Ws.1 and 2 were acting as elders for settlement of marriage of the brother-in-law of the accused officer, which was settled at Peddireddypalli, Hamlet of Vedidakala, Penukonda Taluk, Anantapur District.
37. At this stage, it will be appropriate to refer to the evidence of P.W.4, since it was at his instance P.W.1 claims to have gone to the house of the accused officer for repayment of the hand loan. P.W.4, in his evidence in chief, states that the father-in-law of accused officer by name Konda Reddy is friend of his father, who was a M.L.A. for Penukonda from the year 1972 to 1982. After the death of his father, he used to go to Konda Reddy for financial assistance. According to him, two months prior to this case, he obtained a hand loan of Rs.10,000/- from Konda Reddy. According to him, son of Konda Reddy, who married a woman against the wishes of his father, telephoned him whether he can adjust any amount to him from the loan of Rs.10,000/- 29 he borrowed from Konda Reddy. According to him, on 25.4.2002, he received an urgent call from Hyderabad and he started at 12.00 noon on a vehicle and at that time, he remembered about the phone call of Konda Reddy's son and he went to the shop of his brother-in-law expecting to send the amount through him. The salesman present there informed him his brother has gone for lunch. Then, he called Adinarayana Reddy and gave him Rs.5,000/- to be handed over to Konda Reddy, who will be coming to the house of his son-in-law, the Circle Inspector. At that point of time, this witness was declared hostile. The suggestions given by the Public Prosecutor with regard to the money taken and the reason for repayment of the money were all denied by him. The said Konda Reddy was examined as D.W.4, who toes in line with the case of the accused, but one fact, which stands established from the evidence of all the witnesses, is that, money was paid to the accused by P.W.1 in the presence of D.Ws.1 and 2 in the house of accused officer.
38. But, the prosecution failed to prove beyond reasonable doubt as to whether the money recovered was payment of illegal gratification, or whether it was a return of the hand loan. It is no doubt true that it may not be necessary for P.W.1 to go along with A.C.B. officials to the house of accused officer to pay the amount, but, at the same time, no 30 evidence has been adduced by the prosecution as to whether there was any demand of money on 25.4.2002.
39. As held by the Apex Court in Sejappa's case (supra) initial burden of proving that the accused accepted or obtained the amount as other than legal remuneration is upon the prosecution. It is only when the initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In Suraj Mal v. State (Delhi Administration)21 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.
40. In State of Kerala and Others v. C.P. Rao 22 it was held that mere recovery of the tainted money is not sufficient to convict the accused and there has to be corroboration to the testimony of the complainant regarding the demand of bribe. Further, in Mukut Bihari and Others v. State of Rajasthan 23 the Apex Court categorically held in para 8 as under :
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AIR 1979 SC 1408 22 2011 (6) SCC 450 23 AIR 2012 SC 2270 31 "8. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. 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, but the burden rests on the accused to displace the statutory presumption raised Under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act, 1988. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
41. Therefore, mere recovery of money, even assuming that there was no proper explanation by the accused, does not lead to an inference or a presumption that it was paid as illegal gratification, more so, when there is any amount of doubt with regard to his presence in Penukonda on 25.4.2002 and demanded money as bribe.
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42. Further, the explanation of the accused officer, namely, that a false case has been foisted and that he never demanded any money nor accepted any money as illegal gratification, came to be made by way of representation on 30.4.2020 to Deputy Commissioner of Prohibition & Excise, Anantapur, which is placed on record as Ex.X2. In order to substantiate veracity of Ex.X2 it is required to be noted that immediately after the trap, accused was arrested and later released on bail and on 30.4.2002, he submitted a written representation to the Deputy Commissioner of Anantapur, which was handed over to D.W.3 by the accused officer, who have endorsed on the said representation to the effect as 'for kind perusal of D.C.' He admits that Ex.X2 is the said representation filed by the accused officer. According to D.W.3, the Deputy Commissioner gave oral instruction to him to send a copy of the said Ex.X1 to D.S.P., Anantapur and accordingly they did so.
43. One other aspect, which requires consideration at this stage, is whether there was any official favour pending with the accused officer. The case of the prosecution as per the charge-sheet is that the accused demanded money for not booking case against Yaswanth Wines and if his demand was not met, he will raid the shop and lodge a complaint and get the licence of the shop cancelled. But, no evidence has been produced by the prosecution, either through P.W.1 or 33 through the evidence of Investigating Officer about the pendency of any cases against the said wine shop. It appears not even a single case was registered against the said shop.
44. Having regard to all the above findings and as the demand or acceptance of money as illegal gratification is not proved, I am of the opinion that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt.
45. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant - accused, for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act in C.C. No.9 of 2003 on the file of the Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, by judgment dated 15.11.2007, are set aside. The appellant - accused 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 appellant - accused.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR Date : 31.12.2020 skmr