IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.458 OF 2003 Between: The State of A.P., Rep. by Inspector of Police, Anti Corruption Bureau, Anantapur Range, Anantapur. ..... Appellant/Complainant AND K. Chandra Mohan ..... Respondent/Accused Officer The Court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.458 OF 2003 JUDGMENT: This Criminal Appeal, under Section 378 (1) & (3) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is filed by the State, represented by the Inspector of Police, Anti-Corruption Bureau (for short, “A.C.B.”), Anantapur Range, Anantapur, against the judgment, dated 07.11.2002, in C.C.No.7 of 1999, on the file of the learned Additional Special Judge for SPE & ACB Cases cum V Additional Chief Judge, City Civil Court, Hyderabad, whereunder and whereby the respondent/sole accused was found not guilty of the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short, “the Act”), and accordingly, he was acquitted. 2. The brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: P.W.1 is a resident of Sultan P.Kondapuram Village, Pamidi Mandal, Anantapur District. Y. Madhavi-daughter of P.W.1 was selected as beneficiary under Girl Child Protection Scheme in the year 1997, but the pass book was not issued. In this regard, P.W.1 approached the Accused Officer, who was working as Junior Assistant in the office of the Child Development Project Office, Integrated Child Development Scheme Project, Gooty, Anantapur, during the period from 19.06.1997 to 31.03.1998, but the Accused Officer made P.W.1 to roam around his office. On 17.03.1998, finally when P.W.1 approached the Accused Officer in the office at Gooty, Anantapur, he demanded an illegal gratification of Rs.400/- from P.W.1 to do official favour i.e., for issuance of pass book in the name of the daughter of P.W.1. When P.W.1 expressed his inability to pay the said amount as bribe, then the Accused Officer himself bargained and reduced the same to Rs.100/- and further directed P.W.1 to bring the said bribe of Rs.100/- on 18.03.1998. As P.W.1 was not willing to pay the bribe demanded by the Accused Officer, he lodged a complaint on 17.03.19989 with P.W.8-Deputy Superintendent of Police, A.C.B., Anantapur, upon which P.W.8, who was the Trap Laying Officer, registered a case in Crime No.4/ACB-ATP/1998 on 18.03.1998. After observing necessary formalities, P.W.8 organized the trap on 18.03.1998. During the course of trap proceedings on 18.03.1998, the Accused Officer was successfully trapped when the Accused Officer reiterated his demand of bribe of Rs.100/- and accepted the same from P.W.1. The bribe amount was seized from the possession of the Accused Officer on his production from his right side shirt pocket. After obtaining Ex.P11-sanction order, dated 20.03.1999, from the competent authority, P.W.9-Inspector of Police, A.C.B., Anantapur Range, Anantapur, filed the charge sheet against the Accused Officer for the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Act. 3. The learned Additional Special Judge for SPE & A.C.B. Cases cum V Additional Chief Judge, City Civil Court, Hyderabad, framed the following charges against the Accused Officer: “FIRSTLY: That you being a public servant working as Jr. Asst. ion the office of Child Development ?Project Officer, Integrated Child Development Project, Gooty, Anantapur on 17.3.1998 demanded Rs.400/- as illegal gratification other than legal remuneration to do the official favour viz., to issue pass book of Madhavi the daughter of one Y.Sundaraiah R/o. P.Kondapuram village from him, and on his expressing inability to pay the same, you reduced the demand to Rs.100/- and on 18.3.1998 in pursuance of the said demand you demanded and accepted tainted amount of Rs.100/- from said Sundaraiah at your office to do the above said official favour of issue of pass book of Madhavi who was selected as beneficiary under Girl Child Protection scheme and thereby committed an offence punishable under sec.7 of P.C. Act, 1988 and within my cognizance. SECONDLY: That you being a public servant as mentioned in the 1st charge and on the dates and place as stated in the 1st charge, by corrupt or illegal means obtained for yourself pecuniary advantage to an extent of Rs.100/- to do the official favour as mentioned in the 1st charge, as such public servant and thereby committed offence as specified under sec. 13 (1)(d) punishable under sec. 13 (2) of the P.C. Act, 1988 and within my cognizance.” When the above charges were read over and explained to the Accused Officer, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P12, besides case properties M.Os.1 to 8. 5. After closure of the prosecution evidence, the Accused Officer was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the Accused Officer, no evidence either oral or documentary was adduced. 6. The trial Court, though accepted the evidence of P.Ws.1 and 2 with regard to acceptance and also recovery of M.O.1-tainted currency notes by placing reliance on the evidence of P.Ws.2 and 8 with regard to the recovery of M.O.1-tainted currency notes, but held that mere recovery of M.O.1-tainted currency notes itself is not an offence and found the Accused Officer not guilty of the offences punishable under Sections 7 & 13 (1) (d) read with 13 (2) of the Act and accordingly acquitted him. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case against the Accused Officer beyond all reasonable doubt for the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Act and whether the judgment of the Trial Court is correct, legal and proper? 8. Sri V. Ravi Kiran Rao, learned Standing Counsel appearing for A.C.B. Cases contended that the evidence of P.W.1 is very clear that the Accused Officer demanded an amount of Rs.400/- as bribe, but later, the amount was reduced to Rs.100/- for showing an official favour i.e., to issue passbook to P.W.1 in the name of his daughter for which Government sanctioned an amount of Rs.5,000/- under the Child Protection Scheme; that the Accused Officer is a concerned person to deal with the subject matter; that therefore, there is every possibility for the Accused Officer to demand P.W.1 some amount for showing an official favour; that M.O.1-tainted currency notes were seized from the possession of the Accused Officer; that as seen from the evidence of P.Ws.2 and 8, the Sodium Carbonate Solution Test conducted on the right hand fingers of the Accused Officer proved to be positive as the solution turned into pink colour; that there is absolutely no reason for P.W.1 to foist a false case of this nature against the Accused Officer; that the trial Court has not appreciated the evidence in a right perspective, and therefore, he prays to set aside the order of acquittal and convict the Accused Officer. 9. On the other hand, the learned counsel appearing for the respondent herein contended that there is no official favour to be shown to P.W.1 was pending with the Accused Officer; that there was no nexus between the demand and an official favour to be shown by the Accused Officer; that admittedly, the amount of Rs.5,000/- has not been sanctioned by the Government under the Child Protection Scheme to the daughter of P.W.1; that P.W.1 cannot be termed as a wholly reliable witness so as to place an implicit reliance on his evidence with regard to demand and acceptance of bribe; that mere recovery of M.O.1-tainted currency notes by itself is not a ground to infer that the Accused Officer committed the offences with which he was charged; that the trial Court, after elaborate consideration of evidence on record, rightly acquitted the accused, and therefore, there are no grounds to interfere with the same, and hence, he prays to dismiss the Criminal Appeal. 10. The essential ingredients of Section 7 of the Act are: i) that the person accepting the gratification should be a public servant; ii) that he should accept the gratification for himself and the gratification should be 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 function, favour or dis-favour to any person. 11. Insofar as Section 13 (1) (d) of the Act is concerned, its essential ingredients are: i) that he should have been a public servant; ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 12. There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, though the Appellate Court has got full power to reappreciate the evidence available on record, but it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt. That presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 13. The entire case rests upon the evidence of P.W.1 alone. There was no accompanying witness with regard to the demand made by the Accused Officer on the date of trap or prior to the trap. When a case rests upon the solitary testimony of a witness, it must be unimpeachable, true, trustworthy and reliable. When the evidence of P.W.1 is put in the category of wholly reliable, then there is no legal bar to base a conviction even without any corroboration. On this aspect, it is pertinent to refer to a decision reported in Vadivelu Thever v. State of Madras[1], wherein it was held thus: “Generally speaking oral testimony in this context may be classified into these categories, namely: (i) Wholly reliable (ii) Wholly unreliable (iii) Neither wholly reliable nor wholly unreliable In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach on suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” Bearing the above principles in mind, it is to be seen whether the evidence of P.W.1 can be put in the category of wholly reliable or not. 14. It is not in dispute that P.W.1 made an application for sanction of Rs.5,000/- when the Government introduced a scheme called Girl Child Protection Scheme. As per the scheme, the age of the girl should be below three years and income of the parents should not exceed Rs.11,000/- per annum and the parents should have only two children. In such circumstances, the child is entitled for Rs.5,000/-. It is not in dispute that the Project Director, District Women and Child Development Agency, Anantapur, is the competent authority to select the eligible girls under the scheme. Anganwadi workers have to verify the same and send the eligible candidates’ applications after making survey and prepare a list and submit the same to the Child Development Project Officer, Integrated Child Development Scheme Project, Gooty, Anantapur. They will forward the said applications to the District Women and Child Development Agency, Anantapur. Admittedly, by the date of trap, no amount has been sanctioned to the daughter of P.W.1 for want of budget though one person from P.Kondapuram Village, Pamidi Mandal, Anantapur District, was selected in the month of March/April, 1997. 15. The case of P.W.1 is that he met the Accused Officer four or five times who was working as a concerned clerk in the Child Development Project Office, Gooty, Anantapur District. The Accused Officer informed P.W.1 that the amount has not been sanctioned. On 17.03.1998 at about 2.00 p.m., when P.W.1 met the Accused Officer at his office, he demanded an amount of Rs.400/- towards bribe for issuance of the passbook of the daughter of P.W.1 to P.W.1. When P.W.1 pleaded that he was a poor man, after bargaining, the Accused Officer reduced the bribe amount to Rs.100/-. Not willing to pay that amount, P.W.1 lodged Ex.P1-complaint, dated 17.03.1998, to P.W.8. Admittedly, P.W.1 gave the copy of the application to P.W.3, who was the Anganwadi Teacher belonging to the Village of P.W.1. The reason given by P.W.1 for meeting the Accused Officer was that he was informed by P.W.3 to go and meet the Accused Officer. P.W.1 admitted in the cross-examination that in the year 1997 itself, out of the four children, two children have been selected under the Scheme including his daughter and that the other child received the amount. 16. It is not in dispute that on 28.02.1998, the Accused Officer has sent the name of his daughter along with other names to the Project Office, Anantapur, for sanction of amount. P.W.1 has categorically stated that the Project Officer, Anantapur, has already sanctioned the amount in favour of his daughter and orders were issued to Integrated Child Development Scheme Project office where the Accused Officer was working. The evidence of P.W.1 is very emphatically clear that he has to receive the passbook from Gooty office and further, P.W.1 was informed by P.W.3 that Anantapur Project Office has sent the amount to Integrated Child Development Scheme Project Office, Gooty, Anantapur District, in the month of March, 1998, itself. P.W.1 further stated that in the month of January, 1998, he took P.W.3 to Gooty Office and met Chandra Mohan along with P.W.3. After verification of papers, P.W.3 informed P.W.1 that the amount was received for payment from Anantapur Office. These aspects have not been stated in the earliest report. Those aspects have spoken to by P.W.1 for the first time in the Court. 17. On the other hand, the earliest report would go to show that the Accused Officer demanded an amount of Rs.400/- to get the passbook and not for processing any file or getting the sanction orders from the District Office. That aspect of the case has been completely denied by P.W.3. She stated that she submitted a list containing two names but not four names. She did not inform P.W.1 that the Anantapur Project Office has sent the amount to the Integrated Child Development Scheme Project Office, Gooty, Anantapur District, in the month of March, 1998, and in the month of March, 1998, P.W.3 did not go to the Gooty Office along with P.W.1 and did not meet the Accused Officer and that P.W.3 did not tell P.W.1 that the amount was received for payment from Anantapur Office. If really, any demand was made by the Accused Officer, he would have informed the same to P.W.3. But P.W.3 admitted that P.W.1 did not inform her about the Accused Officer demanding any bribe for showing an official favour. There must be some nexus between demand and showing an official favour. If a demand for illegal gratification other than legal remuneration is made for showing an official favour, then it can be said that the case falls under Section 7 of the Act. The Accused Officer is incapable of showing any official favour because the amount covered by the scheme has not been received. As a matter of fact, the Project Director, District Women and Child Development Agency, Anantapur, is the competent authority to sanction the amount. Unless the amount was sanctioned by the said authority, P.W.1 would not get the pass book from the Child Development Project Office in which the Accused Officer was working. Therefore, P.W.1 has not come to the Court with clean hands. 18. On the other hand, for the reasons best known to P.W.1, he moved the machinery of A.C.B. perhaps by vexation as he was made to roam the office of the Child Development Project, Gooty, Anantapur District, several times. When another child was sanctioned the amount under the scheme, then P.W.1 may be under the impression that the Accused Officer was putting some hurdle for getting the amount under the scheme. It is quite possible for P.W.1 to lodge the complaint in order to give a pressure on the Department so that he would get the amount. As a matter of fact, on the oral instructions, P.W.5-Child Development Officer, Gooty, Anantapur District, sent the photocopy of the application again to the District Office and thereafter, the amount has been sanctioned, i.e., after trap. Therefore, in such circumstances, the evidence of P.W.1 cannot be put in the category of wholly reliable. In view of his false statement in some respects, his evidence requires corroboration. There is no such corroboration to the evidence of P.W.1. Hence, the prosecution failed to establish that the Accused Officer demanded Rs.400/- and later, reduced it to Rs.100/-. 19. It is not in dispute that M.O.1-tainted currency notes were seized from the possession of the Accused Officer and the right hand fingers and the inner lining of the shirt pocket of the Accused Officer was subjected to the Sodium Carbonate Solution Test. The Sodium Carbonate Solution and the glass tumbler turned into pink colour suggesting that the Accused Officer received the amount. The explanation given by the Accused Officer was that he received the amount towards expenses for going to Anantapur to see that the sanctioned amount should be released in favour of the daughter of P.W.1. That possibility cannot be ruled out because the expenses would be to cover the distance from Gooty to Anantapur, which would be nearly 40 kilo meters. Therefore, in such circumstances, it can be said that the amount of Rs.100/- was given to the Accused Officer towards legal remuneration, but not for showing any official favour. 20. The evidence of P.Ws.2 and 8 would clearly go to show that M.O.1-tainted currency notes have been seized from the possession of the Accused Officer. Mere recovery of M.O.1- tainted currency notes by itself is not an evidence. This circumstance alone is not sufficient to infer that the Accused Officer committed the offences, in view of the decision reported in C.M. Girish Babu v. CBI, Cochin, High Court of Kerela[2], wherein it was held thus: “In Suraj Mal v. State (Delhi Admn.)[3], 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 recover 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.” 21. Therefore, for the aforesaid reasons, it is clear that the trial Court has not committed serious infirmities in appreciating the evidence and the appreciation of evidence is not shown to be improper and correct. There are absolutely no compelling or substantial reasons to interfere with the order of acquittal. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 22. In the result, the Criminal Appeal is dismissed confirming the judgment, dated 07.11.2002, in C.C.No.7 of 1999, on the file of the learned Additional Special Judge for SPE & ACB Cases cum V Additional Chief Judge, City Civil Court, Hyderabad. _______________ (K.C. BHANU, J) Date: 10th December, 2009 KL [1] 1957 SC 614 [2] (2009) 2 Supreme Court Cases (Criminal) 1 [3] (1974) 4 SCC 725 : 1980 SCC (Cri) 159