The State Of A.P., Rep. By Inspector Of ... vs Sri Syed Khaja Hussain on 10 November, 2020

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Andhra Pradesh High Court - Amravati

The State Of A.P., Rep. By Inspector Of ... vs Sri Syed Khaja Hussain on 10 November, 2020

Bench: C.Praveen Kumar

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         THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR

                 Criminal Appeal No. 516 of 2007

JUDGMENT:

1) Heard Sri. S.M. Subhani, Standing Counsel for the Anti- Corruption Bureau representing the State 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) The present appeal came to be filed against the Judgment of acquittal, dated 27.06.2005, passed by the Special Judge for SPE & ACB Cases, Nellore, in C.C. No. 5 of 2000. The accused herein was tried for offences punishable under Section 7 and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988.

3) The substance of the charge against the Respondent/Accused Officer is that, on 30.06.1999, at 8.00 a.m., at the Traffic Police Station, Nellore, the Accused Officer demanded the informant [PW1], who happened to be the Cleaner of a lorry bearing registration No. AP7 T 997, a sum of Rs.1,000/- as bribe to be given to V.Ravi Chandra, Sub-Inspector of Police, II Town Police Station, Nellore, and Rs.200/- to himself for returning the registration certificate and permit, which was reduced to Rs.750/- and Rs.150/-, respectively, on 30.06.1999, and accepted on 01.07.1999.

4) The facts, as culled out, from the evidence of prosecution witness, are as under:-

i) PW1 was working as a Cleaner of a lorry bearing No. AP 7 P 997 of which PW5 is the Owner. It is said that, the lorry loaded with coal left Vijayawada to Bangalore. PW6 was said to be the Driver of the said vehicle. From Bangalore, the lorry started with a load of Tomatoes to be delivered at Visakhapatnam. Around 5.30 a.m., the lorry colluded with the bus at Nellore R.T.C., Bus Stand, while it was on its way and both the vehicles got damaged. According to PW1, the driver and conductor of R.T.C., bus requested PW6 stating that the driver of the R.T.C., will get punished by the department if a report is given against them and requested PW6 for damages caused to the R.T.C,. bus. Meanwhile, Traffic Sub-Inspector of Police arrived at the scene and inquired about the cause of the accident. After collecting all the necessary information, the Sub-Inspector of Police asked PW1 to show the papers, which he handed over. Upon which, the Sub-

Inspector of Police stated that penalty has to be imposed and accordingly asked PW1 to keep the lorry in the police station. So saying, he went away. Meanwhile, PW6 -the driver came there and PW1 informed him as to what happened. PW1 and PW6 went to the traffic police station 3 and kept the lorry in the police station. Later, PW6 went and met the Sub-Inspector of Police, by name, Ravi Chandra, and requested him to release the vehicle, to which, he claims to have stated that, he will impose fine of Rs.900/-. When the same was informed to PW5, he directed PW6 [driver] to pay Rs.2,500/- to the R.T.C., as demanded by them, take papers from the Sub-Inspector of Police and get back to the destination.

ii) According to PW1, PW6 is said to have gone to the R.T.C., Depot and paid the amount towards the damages caused to bus and thereafter, approached the Sub-Inspector of Police, requesting him to return papers of the vehicle. But the Sub-Inspector of Police did not return the papers stating unless fine is paid, he would not return them, in- spite of informing that the tomatoes are perishable goods and if the vehicle is not released, it will cause irreparable loss to them. However, the Sub-Inspector of Police accepted for release of the vehicle with a condition that the Cleaner [PW1] and the vehicle should be available at the Traffic Police Station. So, while taking the vehicle, PW6 [driver] asked PW1 to inform the owner of the vehicle [PW5] and follow his directions.

iii) According to PW1, at about 8.00 p.m., the Sub-Inspector of Police, Traffic, returned to police station and requested him to give the papers of the vehicle reiterating that the fine amount has to be paid. As such, on the next day morning, he telephoned to PW5 [owner], who informed that the amount was already paid to the R.T.C., and there is no need to pay any amount to the police and accordingly, directed him to telephone him an hour later. After one hour, he telephoned to PW5, who asked him to go and meet Deputy Superintendent of Police, Murthy, who is the son-in-law of their village Karnam of Peddakakani.

iv) On 29.06.1999, PW1 went and met the R.T.C., Union leaders, who promised to inform PW11 [S.I. of Police], but failed to do so. On 30.06.1999 at 8.00 a.m., PW1 met the Accused Officer and asked him about the documents of the lorry, for which, the Accused Officer demanded Rs.1,000/- for PW11 and Rs.200/- for himself as illegal gratification, for return of 'C' book and other documents. PW1 informed him that he has no money as PW6 did not give him any amount. The Accused Officer is said to have informed PW1 to inform the same to the owner [PW5] of the lorry who will arrange the same. When the same was informed to PW5, he asked PW1 to request the Accused 5 Officer and get the documents or in case of further demand of bribe, to report the matter to the A.C.B., authorities.

v) On 30.06.1999 at 11.00 a.m., PW1 again met the Accused Officer and informed him about the instructions given by PW5. But the Accused Officer again demanded bribe of Rs.900/- as illegal gratification, for return of documents, so that, he will adjust Rs.750/- to S.I. of Police and Rs.150/- for himself. The Accused Officer asked PW1 to get the bribe amount by next day i.e., 01.07.1999. As PW1 was not willing to pay the bribe amount, he approached the Dy. S.P., A.C.B., and lodged a report in writing, which came to be registered as a case in Crime No. 9/ACB-NLR/99, on 01.07.1999.

vi) The evidence of PW13 would reveal that, after receiving the report, he conducted confidential enquiries about the reputation of the Accused Officer and thereafter, registered a crime. Ex.P18 is the original F.I.R. After securing the mediators, namely, PW2 and another, he gave them a copy of the report given by PW1. Thereafter, he called PW1 into his room, introduced him to the mediators and requested the mediators to verify the contents of the complaint and its genuineness. PW2 read over the contents of the F.I.R., to which PW1 6 acknowledged the same as true. Both the mediators attested their signatures on the F.I.R. PW13 asked PW1 as to whether be brought the amount to be paid to the Accused Officer. PW1 produced a wad of hundred rupee denomination currency notes, which was subjected to phenolphthalein test. The numbers of the currency notes were noted in the pre-trap proceedings and thereafter, the importance of phenolphthalein test was explained to PW1. Later, PW1 was explained as to how the solution turns into pink. PW1 was further instructed that he will go to the Traffic Police Station, Nellore, and pay the money only on the demand made by the Accused Officer. Giving the necessary instructions, the amount was kept in shirt pocket of PW1. PW1 was again instructed not to touch those notes till there was need to pay them to the Accused Officer on demand. He 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 lungi, which he was wearing. Ex.P4 is the first mediator report, which was completed by 9.30 a.m. on 01.07.1999.

vii) At about 9.35 a.m., the entire trap party including the mediators and PW1, left the office in Government vehicle and reached Bosu Statue Center in Nellore Town. PW1 7 was asked to proceed by walk to the Traffic Police Station. All other members of the trap party took vantage positions. At about 11.05 a.m., PW13 received a signal and immediately thereafter the entire trap party, proceeded simultaneously and reached the first floor of the C.C.S., building, where, the Traffic Police Station is located. PW1 was standing at the main door of the 1st floor of the building holding a small book in his hand. PW1 showed a room towards South-East corner in the 1st floor where the Accused Officer was sitting. Then, PW13 along with other members of the trap party entered the hall of 1st floor. They noticed a police constable in uniform, two women and five men coming out of the said room were the Accused Officer was sitting. PW13 asked the ACB Inspector, Sarath Babu, to keep all the said persons who came out of the room aside, till their identity particulars were ascertained. Thereafter, he along with the mediators entered into the room where the Accused Officer was sitting on a Chair facing East near a table. On revealing their identities, the Accused Officer stood up. 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 fingers of Accused Officer also proved positive to the test. The explanation 8 given by the Accused Officer was incorporated in 2nd mediator report. Later, PW1 was asked to come inside the room and he was asked to narrate as to what happened after he left the trap party and before he gave the pre- arranged signal. The explanation given by PW1 was recorded by PW2 in the post-trap proceedings. The Accused Officer was asked to produce the general diary, petty case register, F.I.R. index and duty roaster of South Traffic Police Station, Nellore. The explanation given by the Accused Officer was recorded under Ex.P9 -post trap panchanama. The material on record also shows that, the investigation agency prepared an observation report and also rough sketch of the scene, under Ex.P8. After collecting all the necessary document, a charge-sheet came to be filed by PW13, which was taken on file as C.C. No. 5 of 2000.

5) 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.

6) In support of its case, the prosecution examined PW1 to PW13 and got marked Ex.P1 to Ex.P18, beside MO.1 to MO.7. After completion of the prosecution evidence, the 9 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, who was a Head Constable, working in Women Police Station.

7) It is to be noted that, out of 13 witnesses examined by the prosecution, PW1, PW5, PW6 and PW9 did not support the prosecution case and they were treated as hostile by the prosecution. In the absence of any cogent evidence adduced, the trial court acquitted the accused. Challenging the same, the State preferred the present Criminal Appeal.

8) Sri. S.M. Subhani, learned Standing Counsel for Anti Corruption Bureau, representing the Appellant/State, 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, the finding given by the trial court that there is no evidence with regard to demand and acceptance is not correct. He would further plead that, non-examination of five persons, who left the room of the Accused Officer, when the raid party was entering the room has no significance, since, there is positive evidence on record to show that there was a demand and 10 acceptance of money. He would further pleads that, the evidence of PW2 and PW13 corroborates all the circumstances relied upon to establish the guilt of the Accused Officer.

9) The same is opposed by the learned Counsel for the Respondent/Accused Officer stating that, when the evidence of PW1 is silent with regard to the demand of money by the Accused Officer and in view of the spontaneous explanation given by the Accused Officer, which is reflected in post-trap panchanama, a doubt arises as to whether really there was any demand or acceptance of money. Apart from that, he would contend that, the evidence of DW1, who is working as Head Constable would establish that, the prosecution is not coming out with a true version of the case.

10) The point that arises for consideration is, whether the prosecution was able to bring home the guilty of the Accused Officer beyond reasonable doubt?

11) In short, the case of the prosecution is that, the Respondent/Accused Officer is said to have demanded an amount of Rs.900/- as bribe, on 30.06.1999, and accepted the same, on 01.07.1999 for return of the documents relating to a vehicle, of which, PW1 is the cleaner, PW5 is the owner and PW6 is the driver.

12) In order to appreciate the rival contentions advanced, it would be useful to refer to the evidence of witnesses. But, before referring to the evidence of witnesses, three aspects, which require consideration in this appeal are:

i) Whether, there was any official favour pending before the Respondent/Accused Officer;

ii) Whether, the Respondent/Accused Officer demanded the bribe as alleged by PW1; and

iii) Whether, the Respondent/Accused Officer accepted the bribe for doing a favour.

13) As seen from the evidence of PW1, PW5 and PW6, the lorry bearing registration No. AP 7 P 997 was detained at Nellore Police Station when it met with an accident with a R.T.C. bus at the R.T.C., Bus Stand, Nellore and when the bus and the lorry were left at the spot PW11 got the vehicle [lorry] parked in the Traffic Police Station, took 'C' Book and Permit of the lorry. The same gets corroborated from the evidence of PW6. The evidence of PW6 would further show that the concerned R.T.C., authority asked him to pay money for the damage caused to R.T.C., bus, to which, PW6 came out and made a call to PW5 [Owner] informing him about the demand. Then, PW1 informed him that Traffic Sub-

Inspector of Police, Nellore, took 'C' book and permit. On instructions from PW5, PW6 is said to have paid a sum of Rs.2,500/- towards damages to R.T.C., vide Ex.P12. The fact that, an amount of Rs.2,500/- was paid towards damages caused to 12 R.T.C., bus is not in dispute and the same stands established through the evidence of PW3, PW4, PW6, PW7 and the report - Ex.P10.

14) Point No.(i) (Official Favor). As can be seen from the evidence on record, PW11 took 'C' book [Ex.P2], permit of the lorry and handed over them to the Accused Officer, who was Station House Writer. This was on 29.06.1999 at 6.00 a.m. On the same day, at about 5.00 p.m., the Accused Officer is said to have released the lorry pursuant to a compromise arrived at between the lorry driver and the R.T.C., driver, at the instance of the union leaders, but, the Accused Officer kept 'C' book and permit with him. It is the case of the prosecution that the Accused Officer refused to release the 'C' book to PW1 stating that he will release the same after the arrival of Sub-Inspector of Police. Taking advantage of the situation, the Accused Officer is alleged to have demanded bribe of Rs.1,000/-, which was later reduced to Rs.900/- on the next day. From the said amount of Rs.900/-; Rs.750/- was to be paid to the Sub-Inspector of Police and Rs.150/- for the Accused Officer.

15) Since the unofficial witnesses resiled from their earlier statements and were treated hostile by the prosecution, it is now left to be seen from the available evidence whether the Accused Officer was in a position of doing any official favor. 13

16) PW11 - the Sub-Inspector of Police deposed that, on 29.06.1999 at about 6.00 a.m., he took the 'C' book and Permit [Ex.P2] of the lorry and handed over them to the Accused Officer with instructions to register a case against the driver of the lorry. Thereafter, he left to his house. According to PW11, he came back to the traffic police station at 5.00 p.m. In cross-examination, PW11 admits that, Accused Officer was relived from duty at 9.00 p.m., on 28.06.1999 and the charge was handed over to H.C.770, who was on night duty from 5.00 p.m., on 28.06.1999 to 7.30 a.m. on 29.06.1999. The General Diary entries of North and South Traffic Police Station are placed on record as Ex.P6. It would be useful to extract the same from the evidence of PW1, which is as under:-

"It is true that there is an entry in Ex.P6 that the A.O., was relieved from his duty at 9.00 p.m., on 28.06.1999 and handed over charge to H.C.770.

It is true that H.C.770 was the night in-charge / station writer of Traffic P.S., from 9.00 p.m., on 28.06.1999 till 7.30 a.m., on 29.06.1999.

It is true that H.C.770 was the night in-charge of the station and he was present when I went to the station with lorry records at 6.00 a.m.".

17) PW13- the Deputy Superintendent of Police, in his cross- examination admits that, 'as per the entry in Ex.P6 the Accused Officer handed over the charge of General Diary to H.C. 770 at 9.00 p.m., on 28.06.1999. However, he did not examine H.C.770'. It would be useful to extract the same which is as under:- 14

"As per the entry in Ex.P6 the Accused Officer handed over the charge of General Diary to H.C. 770 at 9.00 p.m., on 28.06.1999.

It is true that I did not examine H.C.770 in this case."

18) Though, H.C.770 was not examined by the prosecution, but, he was examined by the Accused Officer as DW1. According to DW1, he attended duty in the Station at 9.00 p.m. on 28.06.1999 by relieving the Accused Officer, till 6.00 a.m., on 29.06.1999. PW11 came to the Traffic Police Station and handed over the records of the lorry informing him about the accident at R.T.C., bus stand and asked him to handover the records to the Accused Officer after his arrival. While PW11 left the police station at 6.00 a.m., the Accused Officer came to the Police Station at 7.30 a.m. DW1 and the Accused Officer attended the Role Call conducted by the North Traffic Sub-Inspector of Police at 7.30 a.m. and thereafter, DW1 handed over the lorry record to the Accused Officer at 8.00 a.m. and went away.

19) Hence, the evidence of PW13, general diary entries in Ex.P6 and Ex.P7 and the evidence of PW11 and DW1, would go to establish that the presence of Accused Officer at 6.00 a.m., on 29.06.1999 doubtful and he [PW11] handing over 'C' book and permit of the lorry to the Accused Officer as false. 15

20) Now the question that arises for consideration is, as to whether Accused Officer has any role to play in releasing the lorry?

21) The evidence of PW10 is that, on receiving instructions from D.S.P., Nellore, on 29.06.1999, he along with PW11 conducted rounds in Nellore, to check unauthorized checking in Nellore by the Police Constables. At about 5.45 a.m., he noticed traffic jam near R.T.C., Depot, Nellore, as one lorry coming from Madras side dashed against R.T.C. Bus. PW10 cleared the traffic and instructed PW11 to register a case against the driver of the lorry. Accordingly, PW11 brought the lorry to the police station and handed over the same to DW1.

22) PW1 in his evidence deposed that, PW6 [driver] went to the R.T.C., depot to pay fine and approached PW11 requesting him to give papers of the vehicle, but, PW11 refused to return the papers unless the fine amount is paid. PW6 informed PW11 that the lorry was carrying tomatoes, which are perishable goods and requested him to release the vehicle and that he would leave the papers and PW1 in the police station, who will take them after paying fine. Accepting the same, PW11 released the vehicle.

23) PW6 [driver] deposed that, he came out of the R.T.C., Depot and telephoned to PW5 [owner] of the vehicle informing him that, PW11 took the 'C' book and other papers and instructed PW1 to 16 bring the lorry to the traffic police station. Accordingly, PW6 took the lorry to the police station and met PW11, who told him to pay a fine of Rs.1,000/-. Again, PW6 telephoned PW5 and informed him about the payment of Rs.2,500/- to be made towards costs of damage to the R.T.C., bus and also about PW11 asking him to pay Rs.1,000/- as fine. PW5 instructed PW6 to pay Rs.2,500/- to the R.T.C., people and bring the lorry back by making a request to PW11. Accordingly, PW6 paid Rs.2,500/- to R.T.C., people and visited the Traffic Police Station, requesting PW11 to release the vehicle, since, the tomato load in the vehicle was perishable in nature and that he has no money, since he already paid the amount to R.T.C. people. PW11 while permitting PW6 to take the vehicle, asked PW6 to keep the R.C. book and other papers with him and take them after paying the fine. Accordingly, PW6 took the vehicle with the load by keeping PW1 at Nellore and the papers of the lorry with PW11.

24) PW9 - who is a R.T.C., Union Leader in his evidence deposed that, pursuant to a compromise, PW6 paid Rs.2,500/- towards damage to the R.T.C., bus; all of them went to the Police Station and informed PW11 about PW6 paying damages caused to the bus; that no case need to be registered against the driver of the lorry [PW6], and hence requested PW11 to release the lorry. 17

25) PW11 in his evidence deposed that, on 29.06.1999 at about 5.00 p.m., he returned back to the traffic point at R.T.C., bus stand and telephoned the Accused Officer, who informed him that he sent away the lorry on the instructions of PW10, as there was a compromise reached between PW6 and the R.T.C. driver. This part of the evidence that, 'on the instructions of PW10, the Accused Officer released the lorry is elicited as an omission'. Further, PW13 in his cross-examination stated that, 'PW11 stated to him that, 'Accused Officer informed him that PW6 and the R.T.C., bus driver entered into compromise, the lorry was sent after informing the matter to PW10'. Thus, it is clear that, the evidence of PW13 that, he was informed that the Accused Officer released the vehicle on the instructions of PW10 is an omission.

26) Hence, the evidence on record shows that, PW11 returned to the Police Station after 7.00 p.m., on 29.06.1999. According to PW1, at about 8.00 p.m., he requested PW11 to give papers of the vehicle, but, PW11 reiterated that the fine amount ought to be paid. Then, PW1 went to Atmakur Bus stand and slept there during that night. On the next day morning, PW1 telephoned to PW5, who told him that, since, they have already paid the amount to R.T.C., people, no amount required to be paid towards fine to the Traffic Police Station. Therefore, it is quite obvious that, there was no official favor pending with the Accused Officer and he has no capacity to extend any favor independently to PW1. 18

27) Point(ii) (Demand). Before proceeding further, it would be useful to refer to the Judgment of the Hon'ble Apex Court in P. Satyanarayana Murthy v. District Inspector of Police and Anr.,1 wherein, the Apex Court held 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.

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."

(2015) 10 SCC 152 19

28) 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."

29) 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 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."

(2017) 8 Supreme Court Cases 136 3 LAWS (SC) 2010 11 84 20 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."

30) 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 went on to hold that mere acceptance of any amount allegedly by 21 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.

31) Keeping in view the law laid down in the Judgments referred to above, I shall now deal with the aspect of demand:-

32) In order to prove demand, the evidence of PW1, PW5 and PW6 are relevant. According to PW1, he approached PW11, who demanded him to pay a sum of Rs.1,000/- towards fine. On the next day, when PW1 requested return of the papers seized, PW11 reiterated his demand. Then, PW1 telephoned to PW5, who informed PW1 that, since, they have already paid amount to R.T.C., people, there is no need to pay any fine to the traffic police.

PW5 asked PW1 to go and meet Dy.S.P., Murthy, who is the son- in-law of Karanam of their village. PW1 in his chief-examination deposed that, except PW11, none asked him to pay any money.

33) PW5 in his evidence deposed that, he instructed PW6 to pay the costs of the damage of the bus to the R.T.C., people and accordingly, he paid the amount. PW6 informed him that, PW11 took the 'C' book of the lorry. On the next day, PW1 telephoned him stating PW11 asked him to pay fine and he is not having any money. Since, PW1 informed about not having money even for food, PW5 instructed him to go to lorry broker office near Atmakur bus stand, take Rs.1,000/- and meet Dy.S.P., Murthy, Nellore. 22 Thus, the evidence of PW5 is to the effect that, it was only PW11 who demanded Rs.1,000/- from him for return of the 'C' book and other papers of the lorry.

34) PW6 in his evidence deposed that, after the 'C' book and other papers were taken away by PW11, he met PW11, who asked him to pay fine of Rs.1,000/-. PW6 came back and telephoned to PW5 informing PW11 of asking to pay fine of Rs.1,000/-. PW5 asked PW6 to bring back the lorry by making a request to PW11. The evidence of PW6 is silent as to the demand of the Accused Officer.

35) According to prosecution, PW1 met the Accused Officer on 30.06.1999 at 8.00 a.m., in the Traffic Police Station, requesting him to return the 'C' book, permit and other papers, and the Accused Officer demanded Rs.1,000/- towards payment to S.I. of Police and Rs.200/- to him as bribe. PW1 again met the Accused Officer at 11.00 a.m., requesting him to return the papers, since, he could not contact his owner [PW5] on telephone, wherein, the Accused Officer reduced the amount to Rs.900/-, out which, Rs.750/- was to be given to the S.I. of Police and Rs.150/- for himself. To substantiate the same, the prosecution relied upon Ex.P1 -F.I.R., since all the unofficial witnesses turned hostile. 23

36) It is a settled law that, First Information Report cannot be treated a substantive piece of evidence and no conviction can be passed on such a statement, without any corroboration. It is the specific case of the prosecution that, PW1 met the Accused Officer twice on 8.00 a.m., and 11.00 a.m., on 30.06.1999. However, PW1 in his evidence deposed that, he did not meet the Accused Officer on 30.06.1999. In such a case, the prosecution should have examined some other witness to prove that PW1 visited twice the traffic police station on 30.06.1999, but, no attempt was made by the prosecution.

37) There are only two persons available on record to reveal what had transpired inside the room of the Accused Officer; one is PW1 and the other is the Accused Officer. The plea of the Accused Officer which is supported by the evidence of PW1 [hostile] that Accused Officer did not demand and accept Rs.900/- from PW1 and that PW1 kept the currency notes in the plastic box and took away the lorry papers, which were kept on the table, when the Accused Officer was attending V.H.F., set and the telephone call. Since, the Dy. S.P. instructed PW1 to pay the money some-how or other, he opened the box kept on the table and kept the currency notes, which were picked out from his pocket. In cross- examination, PW1 admits that, when he kept the money in the plastic box and closed the same, the station writer was not present and the Accused Officer did not observe the same as he 24 was attending phone conversation away from that place. It would be useful to extract the same as under:-

"Since, the Dy. S.P. instructed me to pay the money somehow or other, I opened the box kept on the table and kept the currency notes, which were picked out from my pocket. The station writer came after attending telephonic conversation.

When I kept the money in the plastic box and closed the same, the station writer was not present and the Accused Officer did not observe the same as he was attending phone conversation away from that place".

38) As seen from the record, the prosecution sought to prove the demand made by the accused through P.W.1, but he did not support the prosecution case. Though the evidence of P.W.1 shows that he admitted the signature on Ex.P1, but states that he did not give any report to DSP, ACB. The manner in which his signature came to be taken on a blank paper was explained by P.W.1. It is no doubt true that, as PW1 did not support the prosecution case, he took 'U' turn from what he has stated earlier, but, in the absence of any other evidence with regard to the demand made by the accused, except the evidence of the mediators, who speak about what happened after the alleged report is lodged and after the recovery, there is no other evidence on record to show that there was any demand by the accused. It is not as if that in every case where informant turns hostile, the case has to be thrown out, but the court has to look into other evidence available on record to show whether it is possible to hold 25 that there was any demand for money. Having regard to the fact that all the witnesses, who have some connection with the vehicle, namely, driver and owner, also did not support the prosecution case, this court finds it difficult to hold that the prosecution proved the demand made by the accused.

39) Point (iii) (Acceptance). Sri. S.M. Subhani, Standing Counsel for the Anti-Corruption Bureau, would contend that, once the money is recovered from the shirt pocket of the Respondent/Accused Officer and when the hand of Accused Officer 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.

40) Insofar as the theory of acceptance is concerned, PW13 - Dy.S.P., in his evidence deposed that, on 30.06.1999 at 3.00 p.m., he received Ex.P1 -report from PW1. He conducted confidential enquiries about the reputation of the Accused Officer and registered a case in Cr. No. 9/ACB-NLR/99 for the offence punishable under Sections 7 and 11 of Prevention of Corruption Act. Ex.P18 is the First Information Report. He conducted pre-trap proceedings in the presence of PW2 and other mediators and introduced PW1 to them. He instructed PW1 to go to the Traffic Police Station, Nellore, meet the Accused Officer and request for 26 return of vehicle documents. In the event of any demand, to pay the amount available in his shirt pocket and on acceptance of the same by the Accused Officer, to give a signal by wiping his face with his lungi. Accordingly, PW13 along with other trap party members proceeded independently behind PW1 and took vantage positions in the vicinity of the Central Crime Station Building. On receiving signal from PW1, at 11.05 a.m., PW13 along with trap party members reached the 1st floor of the C.C.S., building and found the Accused Officer sitting on a chair facing east near a table. He ascertained the identity particulars of the Accused Officer and subjected the right and left hand fingers of the Accused Officer to phenolphthalein test, which turned pink in colour. PW13 asked the Accused Officer to produce the amount taken by him from PW1. The Accused Officer took out the key from his pant right side pocket, opened the Godrej almirah available by his side, opened the locker with a key available in the almirah, took out the plastic box in rose colour without lid, kept it on his table and showed a wad of currency notes available in the said box.

41) 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 any evidence to establish demand 27 and acceptance of money as bribe by the accused-officer. Mere recovery of the tainted amount from the accused 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 established beyond doubt. In fact, as stated earlier, P.W.1 is said to have put the money in a plastic box without the knowledge of accused officer i.e., while he was talking with the higher officials and that while leaving the seat, the Accused Officer is said to have placed the plastic box in almirah and taking into consideration the manner in which the money was recovered, a doubt arises as to whether really the money was accepted as gratification.

42) 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 4 2013(3) MLJ (Crl) 565 28 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 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."

43) 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 was not reasonable. [The State Rep.By CBI, Hyderabad v G.Prem Raj]5.

44) 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: 5

AIR2010SC793 6 (2006) 6 S.C.C. 39 29 "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."

45) Having regard to the law laid down by the Apex Court and since the evidence available on record is not cogent and convincing; this court is of the opinion that, the Judgment under challenge requires no interference.

46) 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. 5 of 2000, on the file of the Additional Special Judge for SPE & ACB Cases, Nellore, on 27.06.2005.

47) Consequently, miscellaneous petitions pending, if any, shall stands closed.

_______________________________ JUSTICE C. PRAVEEN KUMAR Date: 10.11.2020 SM...

THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR Criminal Appeal No. 516 of 2007 Date: 10.11.2020 SM.

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Andhra Pradesh High Court - Amravati