Andhra Pradesh High Court - Amravati
M.Ch. Kondaiah, vs The State Of A.P., Rep By Pp ., on 26 November, 2020
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
Criminal Appeal No.955 of 2006
JUDGMENT :
1. Originally, A.O.1 and A.O.2 were tried for the offences punishable under Sections 7, 8 read with Section 10, Section 9 read with Section 10, and Section 13(1)(d) read with Section 13 (2) of Prevention of Corruption Act, 1988. By its judgment dated 13th July, 2006, in C.C. No.7 of 2001, the learned Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, convicted A.O.2 alone for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and sentenced him to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.50/- under each count. The substantive sentences of imprisonment were directed to run concurrently. However, A.O.2 was acquitted of other charges, while A.O.1 was found not guilty of all the charges framed against him. Challenging the same, the present appeal came to be filed by A.O.2. Pending the appeal, appellant - A.O.2 died, hence, his wife, who is the legal representative, filed Crl.A.M.P. No.591 of 2013 seeking to implead her as appellant No.2 in the appeal, which was allowed by this Court on 15.4.2013
2. The substance of the charge against the accused officers is that A.O.1 and A.O.2, being public servants, while working as Junior Assistant and Sweeper respectively in the Government General Hospital, Kurnool, demanded an amount of Rs.500/- and Rs.100/- respectively as illegal gratification other than legal 2 remuneration from one V.Yediga Rama Krishnaiah (P.W.1) for getting a Physically Handicapped Certificate issued in his favour and accordingly accepted the same on 21.8.1999.
3. The facts in issue are as under :
P.W.1 was handicapped by birth with deformity to his right leg, right hand and shoulder and left leg. He was living with his divorced sister with a meager income derived from Ac.2.00 of agricultural land owned by his parents who died long back. P.W.1 enrolled himself in the Employment Exchange, Kurnool, on 27.4.1989, but did not get any call letter from the employment exchange. However, in the year 1999, he learnt that the Government is providing jobs for the handicapped persons, for which he needed a Physically Handicapped Certificate to be obtained from the Government General Hospital. On 9.8.1999, he went to Government General Hospital, Kurnool and handed over an application along with his photographs seeking issuance of handicapped certificate to a clerk, by name, Nagabhushanam (A.O.1), who was working as Junior Assistant in the office of the Superintendent, Government General Hospital, Kurnool. A.O.1 received the said application and informed him that Dr.Seshanna (P.W.11) is on leave and asked him to come on 11.8.1999.
Accordingly, P.W.1 went to the hospital on 11.8.1999, met P.W.11, who examined him and stated that Physically Handicapped certificate can be issued to him after performing an operation. O.P. ticket was issued to P.W.1 on that day. On the next day, he went to the Hospital again with O.P. ticket and met P.W.11, who 3 examined him and asked him to get an x.ray. An endorsement to that effect was made on the O.P. ticket. P.W.1 claims to have gone to the x.ray department and took x.ray, but report was not given to him. Later, he went to P.W.11, who informed him that an operation has to be performed and then only physically handicapped certificate can be issued. As P.W.1 was not wiling to get himself operated, he left the hospital. Again, on 19.8.1999, he went to the Government General Hospital, Kurnool and met P.W.11 with a request for handicapped certificate, without performing any operation. It is said that P.W.11 got angry and asked P.W.1 to leave the hospital. When he came out of the Hospital, A.O.1 and A.O.2, who were working as Junior Assistant & Sweeper in the Hospital, approached him and informed that they will use their influence with the Doctor and get the certificate. Both of them asked him to pay a sum of Rs.500/- to A.O.1 and Rs.100/- to A.O.2 for that purpose. P.W.1 informed them that he will come two or three days later.
4. As he was not willing to pay the bribe amount, he went to the office of DSP, ACB, Kurnool (P.W.13) and presented a report - Ex.P1 on 20.8.1999. He instructed P.W.1 to come with a bribe amount the next day. P.W.13 claims to have caused preliminary investigation and ascertained that there was no ill-will or bad motive to the informant in preferring the report against the accused officers. He verified the antecedents of accused officers and after obtaining permission, registered a case in crime No.11/ACB-Kurnool/99 under Section 9 of Prevention of Corruption Act and sent F.I.R. to the concerned. Ex.P18 is the 4 F.I.R. He sent a requisition to Agricultural Department, Kurnool, to depute two persons to act as mediators.
5. On 21.8.1999, P.W.13, along with mediators P.W.2 and another person A.Lakshmannna, assembled in the chambers of P.W.13 and when P.W.1 arrived, he was called into the chambers. The copy of the report given by P.W.1 was placed before the mediators, who perused the same, confirmed the contents with P.W.1 and being satisfied, asked P.W.1 to produce the currency notes, which were proposed to be given to the accused. P.W.1 produced six Hundred Rupee Notes. The contents of which were noted down in the first mediators' report. P.W.1 was also asked to produce O.P. ticket, the details of which were also noted in the mediators' report. P.W.13 entrusted the currency notes to a Constable, who applied a thin layer of phenolphthalein powder and thereafter explained to P.W.1 the importance of the test and the manner in which the test done. Ex.P3 is the pre-trap panchanama. Later on, the tainted amount was kept in the upper left side chest shirt pocket of P.W.1 with instructions to P.W.1 to approach A.O.1 and A.O.2 in the administrative office of the Superintendent of Government General Hospital, Kurnool and pay the bribe amount only on demand and not otherwise. After receipt of the bribe amount, P.W.1 was instructed to signal by cleaning his face with hands three times. The mediators were instructed to follow the informant and receive the signal and pass on the same to the raid party. The pre-trap proceedings were concluded at 4.20 PM on 21.8.1999. Thereafter, all of them left to the Government General Hospital, Kurnool. The trap party took 5 vantage positions near the main gate of the Hospital. P.W.1 was instructed to hand over the currency notes only on demand and then pass on the agreed signal to the mediators and the trap party.
6. P.W.1 went inside the hospital and then to the upstairs of the hospital building. There, A.O.1 and A.O.2 asked him whether be brought the bribe amount; P.W.1 affirmed the same and handed over Rs.500/- to A.O.1, who received it and kept it in his shirt pocket and asked him to come on Monday stating that he will get the certificate prepared by then. On stating of A.O.1, he paid an amount of Rs.100/- to A.O.2, which, A.O.2 received and kept it in his pocket. P.W.1 then got down from the building and gave a pre-arranged signal to the trap party. On receipt of the signal, DSP and other members of the raid party went inside the hospital. P.W.1 showed A.O.2 as the person who received a sum of Rs.100/-, but A.O.1 was not present there.
7. At that time, DSP enquired about A.O.1 from the staff members present there, who informed him that he left the place just a few minutes ago. Two teams were sent to search for A.O.1. Meanwhile, DSP got prepared sodium carbonate solution in two glass tumblers. A.O.2 was asked to rinse his both hand fingers separately in the two glass tumblers. Both solutions turned pink in colour. M.O.3 is the resultant solution of right hand fingers of A.O.2, while M.O.4 is the resultant solution of left hand fingers of A.O.2. When asked, A.O.2, who first hesitated to produce the amount, on persistence, takes out the tainted amount from the 6 shirt pocket and produced the same. The mediators verified the particulars of Rs.100/- note with the details mentioned in pre-trap panchanama, which tallied. M.O.5 is the said Rs.100/- note. The shirt of A.O.2 was seized and the inner lining of the shirt was rinsed into the sodium carbonate solution, which turned into pink colour. M.O.6 is the resultant solution. When DSP asked A.O.2 about the application of the P.W.1, he was informed that it was with A.O.1. DSP asked the employees present there to give the keys of almirah of A.O.1, but he was informed that the keys are with A.O.1. On identifying the almirah of A.O.1, the DSP seized the same. Thereafter, they searched the table drawers of A.O.1 and found some letters addressed to A.O.1 by some persons. DSP also found some physically handicapped certificates, which were seized. When enquired about Dr.Seshanna, DSP was informed that he was not available in the hospital and that he is at his clinic. Thereafter, they seized the nominal register, x.ray dispatch register and attendance register. Exs.P4, P5 and P6 are the nominal register, x.ray dispatch register and attendance register respectively. Explanation of A.O.2 and the seizure of the documents were incorporated in the panchanama prepared. Ex.P9 is the post-trap proceedings.
8. A.O.1 reported to duty on 25.8.1999. When DSP questioned A.O.1, he stated that on 21.8.1999 after receiving the tainted amount, he exchanged the said amount at cash counter with the help of Sri Murala Brahmeswara Rao (P.W.4) and Sri Inagandla Suryanarayana Rao (P.W.5). DSP secured the presence of P.Ws.4 and 5, who stated that on 21.8.1999 A.O.1 exchanged five 7 Hundred Rupee Notes in the cash counter and took fifty Ten Rupee currency notes. P.W.5 also stated that he disbursed family welfare fund loan of Rs.1,500/- to one Sri R.Venkateshwara Goud (P.W.6), Record Assistant, Government General Hospital, Kurnool with Rs.500/- note received from A.O.1. DSP secured the presence of P.W.6, who stated that after receiving the loan amount, he repaid the loan amount of Rs.1,500/- to his fiend Sri T.Satyanarayana (P.W.7), a betal leaf merchant at Kurnool. DSP secured the presence of P.W.7, who stated that he paid Rs.2,000/- to Sri K.Venkata Subbaiah (P.W.8) towards chit amount. DSP also secured the presence of P.W.8 and seized three 100 rupee denominations of currency notes. Remaining two hundred rupee currency notes could not be traced as P.W.8 stated that he does not remember the person to whom he handed over the said notes.
9. After obtaining sanction, a charge-sheet came to be filed against A.O.1 and A.O.2, which was taken on file as C.C.No.7 of 2001 on the file of Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. On appearance of the accused, copies of the documents as required under Section 207 Cr.P.C. were furnished and thereafter charges under Section 209 as referred to earlier came to be framed, read over and explained to the accused, to which they pleaded not guilty and claimed to be tried.
10. In support of its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P1 to P19, besides marking of M.Os.1 to
10. After completing the prosecution evidence, the accused were 8 examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, but, however, did not adduce any oral evidence in support of their plea. Relying upon the evidence of P.Ws.1, 2, 3 and 11, the learned Sessions Judge convicted A.O.2 as stated earlier, while acquitting A.O.1. Challenging the same, the present appeal came to be filed.
11. Sri J.Janaki Rami Reddy, learned counsel for the appellant - A.O.2, would contend that even accepting the entire evidence of the prosecution to be true, no offence is made out against the appellant - A.O.2. According to him, the appellant was working as a Sweeper in the Government General Hospital, Kurnool, and as such, he has no role or authority in issuing Physically Handicapped Certificate. Hence, urged that the main ingredient, namely, as to whether any favour could have been done by A.O.2 is not established by the prosecution. He would further contend that even as per the evidence of P.W.1, the accused never demanded any amount and it was A.O.1 who demanded a sum of Rs.500/- for himself and thereafter asked P.W.1 to pay a sum of Rs.100/- to A.O.2, the Sweeper. He further pleads that the trap was directed against the Dr.Seshanna and also against A.O.1 who demanded the money, but, since Dr.Seshanna was not available in the Hospital, amount was paid to A.O.1 and A.O.2. Since the evidence of P.W.1 is at variance with the version in Ex.P1 report, counsel for the appellant would submit that it is a fit case where benefit has to be extended to appellant - A.O.2, more so, when it was A.O.1, who received a sum of Rs.500/- as bribe. Learned 9 counsel further submits that the appellant was working as ward boy in TB department of the hospital and not in the main hospital. In fact, it is very difficult to believe that the appellant would have met P.W.1 on the date when he came to the hospital for examination. It is also alleged that P.W.13 failed to conduct any preliminary enquiry before acting on the report given by P.W.1. Having regard to the above, it is pleaded that a false case has been foisted against A.O.2.
12. Sri S.M.Subhani, learned Standing Counsel for ACB and Special Public Prosecutor, appearing for the Respondent-State, would submit that the evidence of P.W.1 would show that both A.O.1 and A.O.2 demanded money promising to get the Physically Handicapped Certificate. Pursuant thereto, on the date of trap, the amount was paid to both the accused on their demand, which was accepted by them. Having regard to the fact that phenolphthalein test conducted on A.O.2 proved positive and money was recovered from his possession and in the absence of any explanation given by him as to how the said amount came into his possession, he pleads that the ingredients constituting the offences are made out. In other words, his plea is that the finding of the trial court requires no interference.
13. 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 with which the appellant is convicted i.e., Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act. 10
14. Before proceeding further it would be useful to refer to Section 13(1)(d), which states that a public servant is said to have committed misconduct if, he, by corrupt or illegal means or by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
15. Section 7 of the Act deals with public servant taking gratification other than legal remuneration in respect of an official act. It postulates that whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, shall be punished with imprisonment for a term not less than six months but which may extend to five years and shall also be liable to fine.
16. Keeping in view the contents of the two provisions, I shall now proceed to deal with the matter as to whether the prosecution made out a case against the appellant - A.O.2 for the offences alleged.
17. Admittedly in the instant case the petitioner was working as Sweeper in TB Department. It is also an undisputed fact that pending appeal he died and the L.R. is brought on record. 11
18. The questions which arise for consideration are :--
(i) Whether there was any official favour which he could do;
(ii) Whether there was any demand for money to do an official favour or for getting a favourable work done; and
(iii) whether the amount was accepted as gratification by getting the work of P.W.1 done, namely, issuance of Physically Handicapped Certificate.
19. As seen from the record, on 9.8.1999, P.W.1 handed over a filled application form along with necessary documents for issuance of Physically Handicapped Certificate to A.O.1. On 11.8.1999, P.W.1 met Dr.Seshanna, who informed him that for issuance of Physically Handicapped Certificate he has to undergo x.ray and later an operation. Pursuant thereto, he claims to have issued an O.P. ticket with endorsement of getting an x.ray done and the same was accordingly done. As Dr.Seshanna (P.W.11) was insisting for an operation to be performed and as P.W.1 was not willing to get any operation performed, left the hospital. Again, on 19.8.1999, he went to the Government General Hospital, Kurnool, met P.W.11 and insisted for issuance of a certificate without performing any operation. The Doctor grew angry, abused him and also asked him to leave the hospital. While he was coming out of the hospital, A.O.1 and A.O.2 approached him and stated that they would use their influence with the Doctor and get him the certificate. According to P.W.1, both of them asked him to pay @ Rs.500/- to A.O.1 and Rs.100/- to A.O.2 - appellant. 12
20. Admittedly, the appellant-sweeper was working in TB department of the hospital and not in the main hospital and has no direct link with P.W.11 - Doctor, leave alone working under A.O.1, who was working as Junior Assistant in the office of the Superintendent, Government General Hospital, Kurnool.
21. On 20.8.1999, P.W.1 went to DSP, ACB (P.W.13) and lodged a complaint - Ex.P1. The DSP, who received the complaint, asked him to come on 21.8.1999 along with the proposed bribe amount. At this stage, it is to be noted that the evidence of D.S.P., who was examined as P.W.13, is to the effect that on 20.8.1999 he received the complaint, caused preliminary investigation and ascertained that there was no ill-will or bad motive in preferring the report and having obtained permission, registered a case in crime No.11/ACB-Kurnool/99.
22. Though the registration of the crime as per the evidence of P.W.13 is on 20.8.1999, but a perusal of the printed copy of the First Information Report, which is marked as Ex.P18, shows that it was dispatched from the Police Station on 21.8.1999. The said report was said to have been received by the Court from ACB, Kurnool, on 22.8.1999 at 12.00 noon. It is also to be noted here that the trap was arranged on 21.8.1999 and the F.I.R. reached the Court long after the trap though alleged to have been despatched on 21.8.1999. The reason for referring to dispatch of the F.I.R., assumes significance having regard to the variations in the version of P.W.1 vis-à-vis the evidence of other witnesses and the contents of the post-trap panchanama, which I shall deal now. 13
23. The evidence of P.W.1 is to the effect that the first demand was made by the accused officers i.e., A.O.1 and A.O.2 on 19.8.1999, when he left the hospital. But, in the cross- examination he admits that A.O.1 was not in the Hospital when he met the Dr.Seshanna on 11.8.1999, 12.8.1999 and 19.8.1999. Coming to the aspect of demand, two things are required to be seen; firstly, as to whether there was really any demand on 19.8.1999 and secondly, whether the amount was accepted pursuant to the demand.
24. It will be useful to extract P.W.1's evidence in chief and the admission in cross, which are as under :
"Again on 19.8.1999 I went to the Government Hospital, Kurnool and met Dr.Seshanna and requested him to issue the Handicapped Certificate without performing any operation. The Doctor grew angry over my such request and asked me to leave and accordingly I was coming out from the hospital. At that time A.O.1 and Ch.Kondiah who is also present in Court (A.O.2) approached me and said since I require handicapped certificate they would use their influence with the doctor and get me that certificate. They asked me to pay an amount of Rs.500/- to A.O.1 and Rs.100/- to A.O.2 for that purpose. I assured them that I would come back to the hospital two or three days later and met them. But I was not willing to pay bribe to both of them. On 20.8.1999 I went to the DSP, ACB and met him and informed him about the above matter and also given to him a written complaint. Ex.P1 is that complaint, which is in my hand writing."
"It is true the A.O.1 was not in the hospital, when I met the Dr.Seshanna on 11.8.1999 and 12.8.1999 and 19.8.1999. It is true I did not inform A.O.1 what has transpired between me and Dr.Seshanna and what he told me. It is true the Doctor on the first day of examining me said, unless I undergo an operation, the handicapped certificate will not be issued. It is true on 19.8.1999 when I met the doctor, he grew angry as to why I came when I am not willing to undergo an operation. I too got angry against the 14 Doctor. It is true the O.P. Room of Doctor Seshanna and the office room of A.O.1 are separate in that hospital. I am not aware that A.O.2 is a Sweeper in the T.B. Section of that hospital. I am not aware where the T.B. Section in that hospital is situated."
25. From the above, the version of P.W.1 in-chief that A.O.1 along with A.O.2 met him outside the Hospital and assured him that his work would be done on payment of certain money, appears to be doubtful, having regard to the admission in the cross that A.O.1, who was working as a Junior Assistant in the said Hospital, was not present in the Hospital on 19.8.1999. In fact, that was the only day on which the accused are alleged to have demanded the money. When A.O.1 was not present in the Hospital on the date when the demand was alleged to have been made, the question of P.W.1 paying the amount to both as illegal gratification pursuant to the demand made on 19.8.1999 appears doubtful.
26. The next point which requires consideration is the lodging of the report and the report reaching the Court. Though the report is said to have been lodged on 20.8.1999, the same was registered as a crime and then dispatched on 21.8.1999, but, strangely this F.I.R. reaches the Court after the trap, though ACB office and the Court are situated at the same place. This assumes significance for the reason that the plea of the appellant is that they trap party came to trap A.O.1 and also Dr.Seshanna, but, since they were not able to trace the Doctor and as A.O.1 left the office by the time the trap party entered the office, after receiving the money from P.W.1, they foisted a false case against A.O.2. It is, therefore, urged before this court that subsequent to the trap the contents of 15 the F.I.R. were changed to show as if the demand was by both the accused and then the F.I.R. was sent to the Court.
27. Whether there was delay and whether there was any change in version with regard to the demand and acceptance requires to be examined now.
28. Before dealing with the said aspect, as held by us earlier, there was no official favour which the appellant could have done. In so far as the demand on 19.8.1999 is concerned, P.W.1 in the cross-examination admits that he never met A.O.1 on that day. Therefore, the demand on 19.8.1999, that is the date on which the demand was alleged to have been made by A.O.1 & A.O.2, appears to be false.
29. Coming to the plea of acceptance, P.W.1, in his evidence states that when he went into the hospital building on 21.8.1999 at 4.20 PM, both A.O.1 and A.O.2 asked him whether he brought the money and he answered in affirmative and handed over Rs.500/- to A.O.1, who received it and kept it in a shirt pocket and later asked him to come on Monday. On the stating of A.O.1, P.W.1 is said to have paid a sum of Rs.100/- to A.O.2. It would be useful to extract the said portion from the evidence of P.W.1, which is as under :
"The DSP and the other members of the party stood out, where as I went inside the hospital and to the upstairs of the hospital building. There A.O.1 and A.O.2 asked whether I have brought the money. I said I have brought and handed over Rs.500/- to A.O.1 who received it and kept it in his shirt pocket and asked me to come on the coming Monday and he would get the certificate for me. On 16 the stating of A.O.1, I have paid the tainted currency note of Rs.100/- to A.O.2, which A.O.2 received and kept in his pocket."
30. From the evidence of this witness it is evident that there was no demand by A.O.2 on the date of trap. In fact, the instructions given to him by the DSP at the time of pre-trap proceedings and also after reaching the office of A.O.1 was to the effect that amount should be paid only on demand by A.O.1 and A.O.2. But, here is a case where there is no demand by A.O.2. On the other hand, A.O.1 (who was acquitted) asked P.W.1 as to whether he brought the money and accepted Rs.500/- for himself and on his instructions, P.W.1 claims to have paid a sum of Rs.100/- to A.O.2, which he has received and kept it in his pocket. Therefore, the main ingredient, namely, payment on demand stands disproved. Since the amount of Rs.100/- was accepted by A.O.2 and as the phenolphthalein test proved positive, even assuming it to be true, can it be said that A.O.2 - appellant has accepted the amount as a gratification, more so, when there is no demand of money from his side on the date of trap and there is a doubt as to demand on 19.8.1999 also. Definitely, the petty amount of Rs.100/-, which P.W.1 paid voluntarily, on instructions of A.O.1 to A.O.2, cannot be termed as a gratification other than legal remuneration.
31. At this stage, it is also useful to refer to the evidence of P.W.2 who speaks about the pre-trap and post-trap proceedings. In Ex.P9 - post trap proceedings dated 21.8.1999, the DSP, ACB, asked A.O.2 to explain as to how he came into possession of the tainted amount. It has been stated that on 21.8.1999 at about 17 17.00 hours upon the demand made by A.O.1 - clerk, the complainant offered the amount. A.O.1 is said to have directed A.O.2 to receive Rs.100/- and that he received the amount from the complainant and thereafter, A.O.1 left the office. Within a short while, the trap party came and caught hold of Kondaiah after ascertaining the identity. It is useful to refer to the same, which is as under :
"When asked about the bribe amount which Kondaiah has received and kept in his left side upper shirt pocket which he had produced and stated that the complainant had agreed to pay one Hundred Rupees to him (Kondaiah) and Rupees five hundred to Sri Nagabhushanam clerk who deals with the subject of P.H. Certificate. And accordingly the complainant approached Sri Nagabhushanam clerk at 17-00 hours on 21.8.99 and upon the demand of Sri Nagabhushanam clerk the complainant offered the amount. Then Sri Nagabhushanam directed Sri Kondaiah to receive Rupees one hundred which he received from the complainant on demand. Sri Nagabhushanam left the office within a short while the trap party came and caught him (Kondaiah) on ascertaining the identity. The DSP seized the shirt of Sri Kondaiah, the particulars of which one white slag with no tailor mark with longitudinal snuff coloured stripes."
32. From the explanation given in the post trap panchanama it is also clear that it was A.O.1 who demanded the amount and it was A.O.1 who directed A.O.2 to receive a sum of Rs.100/-.
33. Further, when the DSP asked the complainant as to what happened after he left the trap party, the complainant stated as under :
"the Complainant stated that at about 17-00 hours he approached Sri Nagabhushanam upon that Sri Nagabhushanam demanded Rupees five hundred for him, he paid the bribe on demand. Sri Nagabhushanam kept the money in his left chest shirt pocket and promised him that he will get the P.H. Certificate in his favour and 18 advised him to come on Monday to him for taking the P.H. Certificate from Dr.Seshanna. He further advised him to give Rupees one hundred to Kondaiah, sweeper."
34. A reading of the version of the complainant also indicate that it was A.O.1 who demanded the money and after accepting the money, kept in his left shirt pocket and promised to get P.H. certificate in his favour and asked him to come on Monday for taking the certificate from P.W.11. A.O.1 further advised him to give Rs.100/- to Kondaiah, Sweeper.
35. Though in evidence it was deposed that on demand of Kondaiah, the complainant paid Rs.100/-, but, the statements of the complainant and A.O.2 recorded during post-trap panchanama clearly indicates it is A.O.1 who demanded money and accepted Rs.500/- and thereafter he advised P.W.1 to give Rs.100/- to A.O.2, Sweeper.
36. From the above findings it is very clear that, neither the prosecution failed to prove any favour which A.O.2 can do, but also failed to establish that there was a demand on 19.8.1999 ( in view of the admission of P.W.1), and acceptance of money by the appellant on demand made by him. Merely because money was paid to him on instructions of A.O.1 without any demand, the same, in my view, cannot be treated as an acceptance of illegal gratification for doing any favour. Definitely, amount received by any employee on demand, for getting any favour done through any other officer, would definitely amount to an offence under the provisions of the Prevention of Corruption Act, but, as observed by us earlier, here is a case where the demand on 19.8.1999 and also 19 acceptance pursuant to a demand on 21.8.1999 are not proved beyond reasonable doubt.
37. The above findings, in my view, are supported by the judgments of the Apex Court in P. Satyanarayana Murthy v. District Inspector of Police and Anr.,1; Mukhtiar Singh (since deceased) through His Legal Representative v. State of Punjab2 and C.M.Sharma v. State of Andhra Pradesh3 etc., where the Apex Court has categorically held that when demand is doubtful, the very foundation of the prosecution case shaken to a great extent.
38. In P. Satyanarayana Murthy's case (1 supra) the Apex Court held that mere possession and recovery of currency notes from an accused without proof of demand would not establish ingredients constituting offences punishable under 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: 1
(2015) 10 SCC 152 2 (2017) 8 Supreme Court Cases 136 3 LAWS (SC) 2010 11 84 20 "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."
39. The said principle was reiterated by the Apex Court in Mukhtiar Singh's case (2 supra), 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."
40. In fact, in C.M.Sharma's case (3 supra), 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 21 whether any demand was at all made by the appellant for 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."
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 and 13(1)(d)(i) and (ii) of 1998 Act and in the absence thereof, unmistakably the charge, therefore, would fail. The Apex Court 22 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.
41. Even otherwise, accepting money to get the work done, may amount to criminal misconduct. But, in the instant case, the situation is totally different. The evidence of P.W.1 himself would show that, on the date of trap, A.O.2, appellant herein, never demanded any amount. It was A.O.1, who demanded and accepted Rs.500/- for himself and thereafter asked P.W.1 to pay a sum of Rs.100/- to A.O.2 without any demand by A.O.2.
42. In view of the judgments of the Apex Court referred to above and having regard to the fact that the prosecution has failed to prove the demand on 19.8.1999 and the acceptance pursuant to a demand on 21.8.1999 and in the absence of any favour which the appellant-Sweeper can do, the Criminal Appeal is liable to be allowed.
43. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed against the appellant - A.O.2, 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.7 of 2001 on the file of the Additional Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, by judgment dated 13.7.2006, are set aside. The appellant - A.O.2 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 - A.O.2. 23
Consequently, miscellaneous petitions, if any, pending shall stand closed.
______________________________ JUSTICE C.PRAVEEN KUMAR Date : 26.11.2020 skmr