Andhra Pradesh High Court - Amravati
State Of Andhra Pradesh, vs Sri Nakkala Guruvaiah, on 20 November, 2020
Author: C.Praveen Kumar
Bench: C.Praveen Kumar
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
Criminal Appeal No. 1252 of 2007
JUDGMENT:
1) Heard Sri. S.M. Subhani, Standing Counsel for the Anti- Corruption Bureau representing the A.C.B. and Sri. M. Ravindra, learned Counsel on behalf of the Respondent/Accused Officer. This Criminal Appeal is disposed of through BlueJeans video conferencing app.
2) Originally the sole Accused in C.C. No. 4 of 2001 on the file of the Special Judge for trial of SPE & ACB Cases, Nellore, was tried for offences punishable under Section 7 and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. By its Judgment, dated 21.12.2006, the learned Special Judge acquitted the Respondent/Accused Officer. Challenging the same, the present Appeal came to be filed by the State represented by Anti- Corruption Bureau.
3) The facts, in the nutshell, are as under:-
i) The father of PW1 died in the year 1997. PW1 along with his two brothers got partitioned the properties in the presence of elders in the year 1999 and a family partition deed was executed amongst them. In the said partition deed, Ac. 5.31 cents fell to the share of PW1, while Ac. 1.64 cents and Ac.1.69 cents fell to the share of other brothers, namely PW7 2 and LW14 [Gopal], respectively. Thereafter, PW1 is said to have approached the Accused Officer, who was working as Village Administrative Officer, with a request to issue pattadar passbooks and title deed to him and to his two brothers. Though, Accused Officer claims to have promised to issue pattadar passbooks, but, did not do so and was postponing the same.
ii) On 22.03.2000, PW1 approached the Mandal Revenue Officer, by name, Venkata Subbaiah [PW5] and presented an application requesting him to issue pattadar passbooks to him and to his two brothers along with a photostat of a family partition deed. Ex.P1 is the application along with enclosures. After making an endorsement, PW5 handed over the document/Ex.P1 to PW1, asking him to hand over the same to Mandal Revenue Inspector. On the next day, PW1 met the Mandal Revenue Inspector and handed over the same to him, who after verification directed him to hand over the same once again to the Accused Officer. Accordingly, PW1 handed over Ex.P1 along with four photographs, to the Accused Officer, in his living room at Venkatigiri. Accused Officer seems to have told him that he will prepare and issue pattadar passbooks.
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iii) On 24.04.2000 at about 11.00 a.m., PW1 approached Accused Officer at his house at Venkatigiri and enquired about the passbooks. It is said that, the Accused Officer demanded a sum of Rs.3,000/- to prepare the pattadar and passbooks. When PW1 expressed his inability to pay such huge amount, the Accused Officer is said to have told him that he has to pay the amount, since the same has to be paid to his superiors. As PW1 was not inclined to pay any bribe, he met his friend Manneti Sundara Raja [PW4] and requested him to draft a complaint addressing it to Anti- Corruption Bureau officials. Accordingly, PW4 drafted a complaint. Pursuant thereto, PW1 came to Nellore Anti- Corruption Bureau and met Dy.S.P., [PW9] on 25.04.2000 and presented a report, which is placed on record as Ex.P2. Thereafter, PW9 -the Dy.S.P., A.C.B., Nellore, conducted inquiries, which revealed that the Accused Officer was corrupt and that PW1 had no ill-motive to give a false complaint. On the next day at about 7.20 a.m., PW9 registered a case in Crime No. 3/ACB-NLR/2000 under Sections 7 & 11 of Prevention of Corruption Act. Ex.P14 is the First Information Report.
iv) On 26.04.2000 at 10.00 a.m., PW9 conducted pre-trap proceedings in his office room in the presence of PW2, one V.Ramamohan Rao and other Police Officials. Thereafter, 4 PW9 called PW1 into his office room and introduced him to the officers present therein. A carbon copy of the First Information Report was given to PW2 to ascertain from PW1 about the correctness of the contents therein. PW2 read out the First Information Report and PW1 acknowledged the same to be true. Thereafter, PW1 was asked as to whether he brought the bribe amount, which was to be given to Accused Officer as illegal gratification. A wad of currency notes were produced by PW1 and at the request of PW9, PW2 verified and found it to be Rs.3,000/- comprising of 03 currency notes of five hundred denomination and 15 currency notes of hundred rupee denomination. In the 1st mediator report, which is placed on record as Ex.P4, the denomination of the said notes was recorded. On instructions, phenolphthalein powder was applied to the currency notes and thereafter, the importance of the phenolphthalein test was explained to PW1. PW1 was also shown as to how the sodium carbonate turns pink in colour. The said proceedings were also incorporated in the pre-trap panchanama. Thereafter, the money was kept in the shirt pocket of PW1 and he was instructed not to touch the same till there was a need to pay the amount. PW1 was further instructed to go to the residence of the Accused Officer from the place where he would be left at Venkatagiri, and that the money be paid to the Accused Officer only on his demand. 5 PW1 was further instructed that, in the event of Accused Officer accepting the money, he will come out and give a signal by wiping his face with the dhoti, which he was wearing.
v) After completing the entire pre-trap proceedings, PW9 along with two A.C.B., Inspectors, Mediators left the A.C.B., office in a government vehicle belonging to Medical and Health Department. At 1.40 p.m., all of them reached Venkatagiri and got stopped their vehicles opposite to Allam Krishnaiah Memorial English Medium School. PW1 was reminded of the instructions given and he was asked to proceed by walk to the residence of the Accused Office. The raid party took vantage position in the vicinity of the residence of Accused Officer.
vi) PW1 proceeded towards the house of Accused Officer located in Kalivelamma Temple Street. By the time he went to the house of the Accused Officer, one Veera Swamy, Talyari of Pravoluru village were sleeping on the floor of verandah and the Accused Officer was taking meals inside his house. After Accused Officer completed his meal and when he was sitting in the room, PW1 entered into the room and requested him about the passbooks. Accused Officer asked him whether he brought the bribe amount. PW1 answered in affirmative. When Accused Officer asked him to pay the money, PW1 6 picked up the tainted currency notes from his shirt pocket and handed over the same to the Accused Officer, who counted the said currency notes and kept them in the right side pocket of his underwear. When PW1 again asked Accused Officer for passbooks, he said that he will issue the passbooks at an early date. Thereafter, PW1 came out and gave the pre-arranged signal. Within five minutes, the entire trap party entered into the house of Accused Officer. PW1 was asked to stay outside till he was called in.
vii) PW2 -the mediator deposed about the events, which took place after they entered the Accused Officer house. According to him, they noticed a person aged about 60 years sleeping. Another person aged about 50 years was standing in the Verandah and the third person was found sitting inside the room. The two persons standing in the verandah were asked to stay there when the trap party entered the room. The Dy.S.P., introduced himself to the said persons and also introduced the trap party members after ascertaining the identity of the Accused Officer, who disclosed himself as Village Administrative Officer, by name, Nakkala Gurvaiah. On instructions, sodium carbonate solution was prepared and the right hand fingers of the Accused Officer were subjected to phenolphthalein test. The solution turned into light pink in colour. The left hand 7 fingers of Accused Officer also proved positive to the test. The explanation given by the Accused Officer was incorporated in 2nd mediator report. Further, Accused Officer picked out the tainted currency notes from his right side pocket of the underwear and gave it to PW2, who counted the same and verified the number with those mentioned in the 1st mediator report. According to PW2, the same tallied. M.O.3 is the tainted currency notes recovered from the Accused Officer. The resultant solutions of the test are placed on record as M.O.4 and M.O.5. The inner-lining of the shorts of the Accused Officer was also tested, which proved positive. M.O.6 is the bottle containing wash of the inner- linings of the shorts of the Accused Officer. Then Dy.S.P. asked Accused Officer about the documents relating to the PW1, pursuant to which, the Accused Officer took out an envelope from a plastic bag, which was kept near the western side wall. The said envelope contained the application of PW1 and other papers along with photographs, which were seized and incorporated in post- trap proceedings. The adangal register and other documents were seized and placed on record as Ex.P7 and Ex.P8. Thereafter, Dy.S.P., called PW1 and asked him as to what happened and the version given by PW1 was recorded in the 2nd mediator report. Ex.P10 is the 2nd mediator report. The material on record also shows that, the investigation agency 8 prepared rough sketch of the scene, under Ex.P9. After completing the proceedings, PW9 recorded the statements of the persons present there and conducted a search of the Accused Officer's residence from 6.15 P.M. to 6.45 P.M., on the same day, but, nothing incriminating was recovered. Further investigation, in this case, was taken up by PW10 - Inspector of Police, Nellore, who examined the remaining witnesses. After collecting all the necessary documents, PW10 filed a charge-sheet on 31.01.2001, which was taken on file as C.C. No. 4 of 2001.
4) On appearance of the accused, copies of all documents as required under Section 207 Cr.P.C. were furnished and charges as referred to earlier, came to be framed, read over and explained to the Respondent/Accused Officer, to which he pleaded not guilty and claimed to be tried.
5) In support of its case, the prosecution examined PW1 to PW10 and got marked Ex.P1 to Ex.P14, beside MO.1 to MO.8. After completion of the prosecution evidence, the Respondent/Accused Officer was examined under section 313 Cr.P.C with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses, to which, he denied. In support of his case, he got examined DW1 to DW3.
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6) Having regard to the fact that the prosecution failed to establish its case beyond reasonable doubt, the learned Special Judge for trial of SPE & ACB Cases, Nellore, acquitted the accused. Challenging the same, the present Appeal came to be filed by the State represented by A.C.B.
7) Sri. S.M. Subhani, learned Standing Counsel for Anti Corruption Bureau, would contend that, when the amount was recovered from the possession of the accused and when the fingers of the accused turned positive to phenolphthalein test, a presumption has to be drawn that the amount was accepted as illegal gratification, more so, when the evidence of PW1 show that there was a demand. He further pleads that, in the absence of any reasonable explanation for recovery of the tainted amount from the custody of the Accused Officer, he would submit that, the prosecution has proved its case beyond reasonable doubt. In other words, his argument is that, when the evidence of PW1 gets corroboration in all respect not only by way of oral evidence but also by documentary evidence, the order of acquittal is illegal, improper and incorrect.
8) On the other hand, the learned Counsel for the Respondent/Accused Officer would submit that, the plea taken by the Accused Officer that the money was planted in view of the disputes existing between PW1 and the Accused Officer is more 10 probable and, as such, the trial court was right in acquitting the Accused Officer.
9) The point that arises for consideration is, whether the prosecution was able to bring home the guilty of the Accused Officer beyond reasonable doubt?
10) It may not be necessary for me to refer to the evidence once again, but, suffice to state that the Accused Officer is alleged to have demanded Rs.3,000/- and accepted the same on 26.04.2000 in his house at Venkatagiri.
11) The issue is, whether there was any official favor pending with the Accused Officer as on the date of trap or whether the said amount was received by the Accused Officer in part payment of hand loan from PW1?.
12) The finding of the trial court is to the effect that the Village Administrative Officer is having a role during the enquiry conducted by the Mandal Revenue Inspector before issuing pattadar passbook and title deeds, and hence, Accused Officer being the Village Administrative Officer has a role to play in doing a favor to PW1. This finding is not challenged by the Accused Officer.
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MOTIVE
13) The evidence on record stands establish that, PW1 and his brothers partitioned the properties and got executed a family partition deed. They claim to have made an application seeking issuance of pattadar passbooks in their favour. Before dealing with the same, it would be just and proper to refer to the relationship between the Accused Officer and PW1.
14) PW4 is a resident of Mokkalalpudi Village, Venkatagiri Mandal. He is the person, who is said to have drafted the report on the information furnished by PW1 and Ex.P2 is the said report. In the cross-examination, he admits that, PW1 was married to his sister's daughter at the age of 35 years. After the demise of the father of PW1, the property was mutated in the name of his mother and the Accused Officer issued pattadar passbook in the name of mother of PW1. He further admits that, PW1 is a faithful follower of Accused Officer and used to stay in the house of the Accused Officer in Palakondasatram and in the room in Venkatagiri, dining with him and staying with him. It is also admitted that, whenever Accused Officer used to go out, he used to entrust the keys of his house and room to PW1.
15) PW4 further deposed in his evidence that, PW1 and his two brothers borrowed money in their village and in the surrounding villages, and he used to write promissory notes in the village. He 12 further admits that, PW1 borrowed Rs.7,000/- from Gunnaiah, the brother's son of the Accused Officer, at the instance of Accused Officer and was unable to discharge the debt. PW1 gave part of his land on lease for a period of one year to Gunnaiah which was cancelled later. The said Gunniaha [brother's son of Accused Officer], filed a suit against PW1 before the Junior Civil Judge Court, Venkatagiri. PW4 also speaks about one Manneti Subbaramaiah lending a sum of Rs.3,500/- to PW1, at the instance of Accused Officer, which PW1 was unable to discharge the debt. In order to repay the same, PW1 sold part of the land to Manneti Subbraramaiah toward discharge of part of his debt. Said Manneti Subbraramaiah filed a suit against PW1. PW4 further deposed that, Accused Officer lent a sum of Rs.3,000/- or Rs.3,500/- to PW1 and as PW1 was not discharging the same, the Accused Officer requested PW4 to convince PW1 to repay the debt amount to Accused Officer.
16) From the evidence of PW4, it is clear that Accused Officer and PW1 were good friends and PW1 used to move very closely with Accused Officer. In-fact, the evidence of PW4 shows that, PW1 used to stay in the room of the Accused Officer at Venkatagiri and whenever the Accused Officer used to leave the station, he used to give the keys of the house to PW1. Apart from that, the evidence of PW4 also discloses that PW1 used to take loans from number of people in the village and committed default in payment 13 of the same, for which proceedings were initiated in appropriate civil courts. In-fact the evidence of PW4 also reveals that PW1 was due a sum of Rs.3,000/- or Rs.3,5000/- to Accused Officer, who was requesting PW4 to prevail upon PW1 for repayment of the said amount. The evidence of PW4 also shows that, when the wife of PW1 died under suspicious circumstances, i.e., one year after the marriage, the Accused Officer presented a report, pursuant to which, PW1 was arrested and detained in jail in respect of a crime registered under Section 302 I.P.C.
17) It is the case of the Accused Officer that, he arranged a loan of Rs.3,700/- to PW1 from DW1. In-fact, PW1 in his cross- examination admits that, he borrowed Rs.3,700/- from DW1 and that DW1 filed a suit against PW1 in Venkatagiri Court. Furthermore, DW1 in his evidence deposed that, about 10 years ago he lent Rs.3,700/- to PW1 on the recommendation of Accused Officer. DW1 also deposed that, though he demanded PW1 to repay the debt, but, PW1 failed to repay the same. Then DW1 met the Accused Officer and told him about lending the amount to PW1 at his instance. Thereafter, Accused Officer demanded PW1 to repay the debt, but, PW1 protracted the same. Later, DW1 filed a suit against PW1, which was decreed and PW1 paid the amount in installments in execution petition. In cross-examination, DW1 admits that, he lent a sum of Rs.3,500/- to PW1 at the instance of Accused Officer.
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18) Further, the Accused Officer also arranged loan of Rs.7,000/- from DW2 to PW1. PW1 in his cross-examination admits that, DW2 is the brother's son of Accused Officer. Even though PW1 denied that, Accused Officer arranged a loan of Rs.7,000/- from DW2. PW1 deposed that, he himself approached DW2 and borrowed the said amount and as he did not repay the said amount, DW2 filed a O.S. No. 92 of 2000, wherein the Accused Officer gave evidence as PW3. However, PW4 in his cross- examination admits that, PW1 borrowed Rs.7,000/- from DW2 at the instance of Accused Officer. DW2 in his evidence also deposed that, he lent a sum of Rs.7,000/- to PW1 on the recommendation of Accused Officer and obtained a promissory note written by PW4 and attested by the Accused Officer. Since PW1 did not repay the amount, DW2 approached the Accused Officer, who in turn demanded PW1 to repay the debt. As PW1 failed to discharge the debt, DW2 filed a suit, in which, Accused Officer gave his evidence as PW3.
19) From the evidence of PW4, DW1 and DW2, it stands established that there were some monetary transaction between PW1 and the family members of the Accused Officer and the non- payment of the debt by PW1 lead to initiation of proceedings before the court for recovery of the same. Hence, there was a motive for PW1 to foist a case against Accused Officer. 15
20) Coming to the issue, namely, as to whether the money was accepted for issuance of pattadar passbook. The evidence on record shows that the father of PW1 was having Ac.8.64 cents and his father died in the year 1997 leaving his mother and two sons. After the death of the father of PW1, an extent of Ac.5.16 cents was recorded in the name of the mother of PW1 and pattadar passbook was also issued in her favor by the Accused Officer. Later on, PW1 and his brothers, who having knowledge about the above transaction and without making their mother as a party, got a partition deed prepared on 27.05.1999 and insisted Accused Officer to issue pattadar passbook basing on the said partition deed. It is the case of the Accused Officer that, he was refusing to issue pattadar passbooks, having regard to the contents in partition deed, as already pattadar passbook was issued in the name of the mother of PW1 and she was not made a party to the partition deed, which fact was admitted by PW1 in his evidence. Though, PW1 speaks about his mother relinquishing her share, but, no document was placed on record to show, when his mother relinquished her share and no effort was made by the prosecution to examine the mother of PW1 to prove the same. In- fact, the evidence of PW7, who is no other than the brother of PW1 goes to show that, he approached the Accused Officer and requested him not to issue pattadar passbooks as per Ex.P1. It is the plea of the Accused Officer that, brother of PW1, by name, Gopal along with his mother approached him and insisted him not 16 to issue pattadar passbook because of the disputes between them, more particularly, as PW1 refused to discharge family obligations after the partition. The fact that PW1 resiled from performing the family obligations is clear from the answer elicited in the cross- examination of PW4, which is as under:-
"It is true that after partition deed was executed, PW1 resiled from the terms of the partition and disputes arose among them and all the three brothers have been discharging the family debts."
21) From the evidence referred to above, more particularly, the evidence of PW4 and PW7, it is very much evident that, though, PW1 agreed to discharge the debts after execution of partition deed, but, resiled from the terms of the partition. Having regard to the closeness between PW1 and Accused Officer, Accused Officer appears to have refused to issue pattadar passbooks based on partition deed and when he insisted, informed to report the matter to M.R.O., concerned. This could also be one of the reasons for PW1 to foist a false case. Such being the position, demanding money for issuance of passbooks may not arise.
22) It is also to be noted that as per the evidence of PW1, he presented Ex.P1 along with the enclosures to PW5 -M.R.O., who endorsed on it to Mandal Revenue Inspector. But, there is no inward number on Ex.P1 and it is not routed through proper channel. The fact that, it was not processed in proper channel is 17 evident from the admissions in the evidence of PW5, who admitted that, for administrative convenience and in good faith applications were entrusted to the parties. But, however, he admits that he did not verify the genuineness of the application while making endorsement to the Mandal Revenue Inspector. Further, Ex.P1 was not handed over to PW6 [Mandal Revenue Inspector] as he was on leave. But, later came to know through one P.Subbarayudu that PW1 brought the application claiming pattadar passbooks, which was endorsed by M.R.O., Venkatagiri and then the said Subbarayaudu told him that the village was not under his jurisdiction and directed him to approach the Village Administrative Officer concerned for preparation of pattadar passbooks. PW5 asked PW1 to handover the application to Village Administrative Officer, Mokkalalpudi village. It is his case and also the evidence of PW4 that, PW1 is having access to the room of Accused Officer and that PW1 kept Ex.P1 along with enclosures in the room of the Accused Officer for a few days prior to 26.04.2000. Knowing the same, the Accused Officer questioned PW1. But, the reply from PW1, as is evident from the record that, he got endorsement from PW5 and, as such, kept the same in the room of the Accused Officer and the Accused Officer is bound to issue passbooks, to which, the Accused Officer is said to have told PW1 that, as PW5 did not notice the fact that, already pattadar passbook was issued to the mother of PW1, and as the mother of PW1 is not a party to the partition deed, he will inform the 18 superior officials of the same. This lead to a quarrel between PW1 and Accused Officer and thereafter, Accused Officer warned PW1 not to enter in his room or house and also demanded to repay the amount due to him. These aspects are clear from the evidence of PW1, PW4, PW5 and PW6. It may not be necessary for me to extract the entire evidence, as it is not seriously disputed by the learned Appellant representing State.
23) When the Accused Officer refused to issue pattadar passbooks to PW1 and his brothers, as they were already issued, demanding money for the same appear to be doubtful.
24) Coming to the actual trap. The evidence of PW1 and DW1 to DW3 amply establish that PW1 has taken hand loan from various persons in the village including from Accused Officer. On the date of the incident, when PW1 went to the house of the Accused Officer, the Accused Officer is said to have demanded/ questioned as to whether the bribe amount was brought, to which PW1 answered in affirmative, took out the amount, which was accepted and then kept in his right side pocket of his underwear/shorts.
25) The question of Accused Officer issuing pattadar passbooks would not arise, having regard to the fact that, the Accused Officer himself has issued pattadar passbook in favor of mother of PW1. Immediately after the trap and recovery of money from the Accused Officer, the Dy.S.P., [PW9] asked him to as to how the 19 tainted money came into his possession, the Accused Officer gave a spontaneous explanation as to how and for what purpose he received the amount. He stated that this amount was accepted as repayment of the hand loan taken by PW1. The fact that PW1 was due some amount to the Accused Officer is not in dispute. In-fact, as stated by me earlier, the same is evident not only through the evidence of DW1 and DW2, but, also through the evidence of PW4.
26) DW3 is one Gangodi Rajaiah, who married the younger sister of the Accused Officer. According to him, on one day, he went to the house of the Accused Officer at 1.00 p.m. At that time, Accused Officer requested him to have meals with him. The Accused Officer sent the Talari and got carriage of meals from the hotel and when both of them together were having meals, PW1 came there. Accused Officer invited PW1 to have meals. PW1 stated that, he already had meals. While taking meals, Accused Officer enquired with PW1 the purpose for which he came there, to which, PW1 stated that he came there to repay the amount due to him. Accused Officer told PW1 to sit till they complete the meals. Thereafter, PW1 gave Rs.3,000/- to Accused Officer stating that it was towards due amount and the Accused Officer received it, counted the same and then kept it in his underwear pocket. According to DW3, PW1 also stated that, he will pay the remaining amount within few days.
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27) The presence of DW3 at the scene cannot be doubted, for the reason that even the investigating officer [PW9] in his evidence deposed about the presence of two other persons in the house at the time when they entered the house. In-fact, they noticed one person sleeping on the floor and another person aged about 50 years standing in the verandah and the Accused Officer sitting on a chair in the main room of the house. In-fact, the evidence of PW2 -the mediator corroborates with the evidence of PW9. According to him, they noticed a person aged about 60 years sleeping and another person aged about 50 years was standing in the Verandah and the third person was found sitting inside the room. The two persons standing in the verandah were asked to stay there when the trap party entered the room. Thus, the presence of three persons in the house, at the time of trap, stands established. The presence of DW3 in the house and the invitation by the Accused Officer to PW1 for having lunch were suggested to PW1, which were denied by him. Therefore, the argument of A.C.B. Counsel that the presence of DW3 in the house is doubtful and the plea was invented for the first time cannot be accepted. In-fact, such a defence was suggested to PW1, who denied, but the presence of third person in the house was established through the evidence of PW2 and PW9. Therefore, this evidence of DW3, in my view, cannot be brushed aside. Though, DW3 was cross-examined at length by the Public Prosecutor, but, nothing useful came to be elicited to discredit his testimony. Therefore, having regard to the 21 evidence of PW4 and DW1 to DW3, coupled with the fact that the Accused Officer gave spontaneous explanation, which was incorporated in the post-trap panchanama, a doubt arises as to whether really money was taken as bribe or was it received as repayment of loan amount.
28) Further, as observed by the Hon'ble Apex Court in P. Satyanarayana Murthy v. District Inspector of Police and Anr.,1 that, mere possession and recovery of currency notes from an accused without proof of demand would not establish Section 7 as well as Section 13(1)(d)(i) & (ii) of the Prevention of Corruption Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be 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. Dealing with the same, the Court observed as under:
"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.1
(2015) 10 SCC 152 22 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."
29) The said principle was reiterated by the Apex Court in Mukhtiar Singh (since deceased) through His Legal Representative v. State of Punjab2, as under:-
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and
(ii) of the Act and in absence thereof, unmistakably the charge therefor, 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 and 13 of the Act would not entail his conviction thereunder."
30) In fact, in C.M. Sharma v. State of Andhra Pradesh etc.,3 the Apex Court held as under:
"In support of the submission reliance has been placed on a decision of this Court in the case of Panalal Damodar Rathi v. State of Maharashtra (1987) Suppl. SCC 266 and our attention has been drawn to the following paragraph of the judgment:
"26. Therefore, the very foundation of the prosecution case is shaken to a great extent. The question as to the handing over of any bribe and recovery of the same from the accused should be considered along with other material circumstances one of which is the question whether any demand was at all made by the appellant for 2 (2017) 8 Supreme Court Cases 136 3 LAWS (SC) 2010 11 84 23 the bribe. When it is found that no such demand was made by the accused and the prosecution has given a false story in that regard, the court will view the allegation of payment of the bribe to and recovery of the same from the accused with suspicion."
In Suraj Mal v. State (Delhi Admn.), (1979) 4 SCC 725 this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
Another decision on which reliance is placed is the decision of this court in the case of State of Maharashtra v. Dyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 in which it has been held as :
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety."
31) From the judgments referred to above, the Apex Court has categorically held that, in order to prove a charge under Sections 7 and 13 of 1988 Act, the prosecution has to establish by proper proof, the demand and acceptance of illegal gratification. The Court held that till that is accomplished, accused should be considered to be innocent. The proof of demand of illegal gratification, thus, is the gravamen of offence under Sections 7 24 and 13(1)(d)(i) and (ii) of 1998 Act and in the absence thereof, unmistakably the charge, therefore, would fail. The Apex Court went on to hold that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors proof of demand, ipso facto, would thus not be sufficient to bring home charge under aforesaid two sections.
32) Sri. S.M. Subhani, Standing Counsel for the Anti-Corruption Bureau, would contend that, once the money is recovered from the underwear pocket of the Respondent/Accused Officer and when the hands turned positive to phenolphthalein test, a presumption has to be drawn that the said money was accepted as bribe. In other words, his plea is, acceptance of money and recovery of the same from the possession of the Respondent/Accused Officer is sufficient to base a conviction.
33) Insofar as the theory of acceptance is concerned, the circumstances and the place from where the money was recovered does not by itself establish the guilt of the accused, as the demand of money as illegal gratification was not established beyond reasonable doubt by the prosecution. Things would have been different had there been evidence to establish demand and acceptance of money as bribe by the Accused Officer. Mere recovery of the tainted amount from the Accused Officer may not by itself fix him with liability of accepting the same for doing an official favour, more so, when existence of official favour was not 25 established beyond doubt and when the demand of money as illegal gratification is clouded with suspicion.
34) In State of Punjab v. Madan Mohan Lal Verma4, the Hon'ble Supreme Court held that, mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification'. It is appropriate to incorporate paragraph No.7 of the said judgment, which reads thus:
"7. The law on the issue is well settled that 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 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 a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, 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 1988 Act. 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 how the amount in question was found in 4 2013(3) MLJ (Crl) 565 26 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. In a proper case, the court may look for independent corroboration before convicting the accused person."
35) It is also to be noted that, this being an appeal against acquittal, interference is impermissible, unless the judgment of acquittal tends to be perverse or unless the inferences drawn in acquitting the accused were not reasonable. [The State Rep.By CBI, Hyderabad v G.Prem Raj]5.
36) In the case of M.S. Narayana Menon @ Mani v. State of Kerala & Anr.6, the Apex Court has narrated the powers of High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:
"54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two views are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below."
37) Having regard to the law laid down by the Apex Court and as the evidence available on record is not cogent and convincing; this 5 AIR2010SC793 6 (2006) 6 S.C.C. 39 27 court is of the opinion that, the Judgment under challenge requires no interference.
38) In the result the appeal fails and it is accordingly dismissed, confirming the acquittal of the Respondent/Accused Officer for the offences punishable under Section 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988, passed in C.C. No. 4 of 2001, on the file of Special Judge for SPE & ACB Cases, Nellore, on 21.12.2006.
39) Consequently, miscellaneous petitions pending, if any, shall stands closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR Date: 20.11.2020 SM...
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THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR Criminal Appeal No. 1252 of 2007 Date: 20.11.2020 SM.