THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 549 OF 2003 JUDGMENT: 1. This Criminal Appeal is directed against the judgment dated 23.12.2002 in Calendar Case No.19 of 2001 on the file of the Special Judge for CBI Cases, Hyderabad, whereunder and whereby the respondent/sole accused was found not guilty of the offences under Sections 7 and 13 (1) (d) read with 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the Act’) and accordingly acquitted. 2. The brief facts that are necessary for disposal of the present Criminal Appeal may be stated as follows: The Accused was working as Manager in United Bank of India, Main Branch, Koti, Hyderabad since the year 1998. P.W.7, who is mother of P.W.1, was the Proprietor of M/s. Lakshamammai Poultry Farm and she availed loan of Rs.2,16,000/- from United Bank of India. She could not repay the loan amount to a tune of Rs.1,50,000/- and so Original Suit No.169/1994 on the file of the III Additional Judge, Ranga Reddy District was filed for recovery of the loan amount including interest. P.W.1 was looking after the settlement issue of loan amounts with the Bank on behalf of his mother P.W.7. After several negotiations, the final settlement was arrived and on 10.1.2001, P.W.1 paid an amount of Rs.2.00 lakhs to the Bank as part of final payment. On 11.1.2001, P.W.1 met the Accused Officer and gave him letter to release the original loan documents and also to issue Loan Clearance Certificate. The Accused Officer acknowledged the receipt of the letter and demanded an amount of Rs.10,000/- as bribe to issue Loan Clearance Certificate and release original loan documents. On Ex.P1- complaint lodged by P.W.1, P.W.8, Inspector of Police, C.B.I. as per the orders of the Superintendent of Police, C.B.I., registered case in RC 2(A)/2001 and took up investigation. Ex.P.15 is the original F.I.R. P.W.8 prepared Ex.P2-1st Mediators Report on 12.1.2001. P.W.8, kept the currency notes in an envelope and handed over the same to P.W.1 who was accompanied by P.W.2 and one Mr.Jinna. P.W.1 along with shadow witness P.W.2 went to the chambers of the accused officer and the amount was kept in a cover. P.W.1 asked the accused “shall I give” and the accused replied in affirmative and the envelope containing tainted currency was taken and kept in the left side shirt pocket. On giving the pre-arranged signal by P.W.3, the Trap Team went into the chambers of the accused and when his hands were dip in Sodium Carbonate Colorless solution, the same turned into Pink indicating that the accused received the envelope containing the bribe. P.W.8 prepared Ex.P3-2nd Mediators Report. He also seized certain documents and collected M.O.s 1 to 5. P.W.8 also seized Ex.P7-Loan Clearance Certificate dated 12.1.2001 and also a copy of the same. P.W.9, Inspector of Police, C.B.I., took up further investigation from P.W.8 and recorded the statements of witnesses and laid charge sheet after completion of investigation. 3. The charges framed against the respondent are as follows: “CHARGE U/s 7 OF P.C.ACT,1988 That you being a Public Servant, employed as Manager, in United Bank of India, Main Branch, Bank Street, Koti, Hyderabad since December, 1998 demanded and accepted an amount of Rs.10,000/- on 12.1.2001 from Sri K.Madanmohan Reddy, for issuing loan clearance certificate and original loan documents and thereby committed an offence punishable under Section 7 of P.C.Act,1988 and within my cognizance. CHARGE U/S 13(2) r/w 13(1)(d) of P.C.Act, 1988 That you being a Public Servant, employed as Manager, United Bank of India, Main Branch, Bank street, Koti, Hyderabad, by corrupt or illegal means obtained for yourself a pecuniary advantage of Rs.10,000/- from Sri K.Madanmohan Reddy on 12.1.2001 and thereby committed an offence punishable under Sec. 13(2) r/w 13(1)(d) of P.C. Act, 1988 and within my cognizance.” When the charges were read over and explained to the respondent, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws. 1 to 9 and got marked Exs.P1 to P17, besides case properties M.Os. 1 to 5. 5. After closure of prosecution evidence, the respondent was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against him in the evidence of the prosecution witnesses, for which he denied. On behalf of the respondent, no oral evidence was adduced, but Exs.D1 and D2 were marked. 6. The trial Court, after consideration of the evidence on record, found the respondent not guilty of the charges under Sections 7 and 13(1) (d) read with 13(2) of the Prevention of Corruption Act, 1988, accordingly acquitted him. Challenging the same, the present appeal is preferred by the appellant/State. 7. Now, the point for determination is whether the prosecution proved the guilt of the respondent/accused for the charges under Sections 7 and 13(1) (d) read with 13(2) of the Prevention of Corruption Act, 1988 ? 8. The learned counsel Sri T.Niranjan Reddy, appearing for the appellant/Central Bureau of Investigation, contended that, the evidence of P.W.2, shadow witness, would clearly go to show that there was implied demand and acceptance on the part of the accused to show a favour viz. to return the documents pledged for loan, and therefore an official favour to be shown by the accused to P.W.1 was pending prior to trap; that, though P.W.1 turned hostile, the evidence of P.W.2 is very clear that the accused demanded and accepted the money from P.W.1. Hence, he prays to set aside the order of acquittal recorded by the trial court and convict the respondent. 9. On the other hand, the learned counsel appearing for the respondent/accused contended that, there is absolutely no evidence to show that the accused demanded and accepted money from P.W.1; that the money was put in the sealed cover and there was no scope or possibility to see the contents of it; that, no official favour to be shown by the accused to P.W.1 was pending with the accused; that, after an elaborate consideration of the evidence of record, the trial court rightly acquitted the respondent and there are no grounds to interfere with the same. Hence, he prays to dismiss the Criminal Appeal. 10. There cannot be any dispute that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal passed by the trial Court. In dealing with the appeals against acquittal, though this Court has full power to re-appreciate the evidence, at the same time, it would be slow in interfering with the order of acquittal because there is a presumption under law that accused is presumed to be innocent unless contrary is proved and that presumption is further strengthened by the order of acquittal. Unless there are substantial or compelling reasons, this Court will not ordinarily disturb the findings of the trial Court. If the trial Court has given any perverse finding, then it can be a ground to interfere with the order of acquittal. Similarly, if admissible evidence has not been taken into consideration or inadmissible evidence has been looked into for the purpose of arriving at a particular finding, then also it can be said to be a compelling reason to interfere with the same. 11. On this aspect, it is pertinent to refer to a decision in Harbans Singh & another v. The State of Punjab[1], wherein it is held as follows: (para 8) “The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on ‘compelling and substantial reasons’ and has expressed the view that unless such reasons are present in an Appeal, Court should not interfere with an order of acquittal (Vide Suraj Pal Singh v. The State, 1952 SCR 193: (AIR 1952 SC 52); Ajmer Singh v. State of Punjab, 1953 SCR 418: (AIR 1953 SC 459). The use of the words, ‘compelling reasons’ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had, meant by the words ‘compelling reasons’. In later years the Court has often avoided emphasis on ‘compelling reasons’ but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.” 12. 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. 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. 13. Admittedly, the accused was working as Manager in United Bank of India, Main Branch, Koti, Hyderabad at the relevant point of time of the incident. It is not in dispute that, P.W.7 who is mother of P.W.1, was the Proprietor of M/s. Lakshamammai Poultry Farm and she availed loan of Rs.2,16,000/- from the Bank by pledging the relevant documents of title, and as she could not repay the amount, a suit was filed for recovery of the amount due. P.W.1 was looking after the settlement issue of loan amounts with the Bank on behalf of his mother P.W.7, and after negotiations, the final settlement was arrived, and on 10.1.2001, P.W.1 paid an amount of Rs.2.00 lakhs to the Bank as part of final payment. It is the case of prosecution that, on 11.1.2001, when P.W.1 requested the accused to release the original loan documents and also to issue Loan Clearance Certificate, the accused demanded an amount of Rs.10,000/- as bribe to issue Loan Clearance Certificate and release original loan documents. 14. P.W.1, who set the criminal law into motion by lodging Ex.P1-complaint and used the machinery of Central Bureau of Investigation (C.B.I.), did not support the case of prosecution. He has given a complete go-by to his earlier version. Therefore, the prosecution sought permission from the trial court to declare him hostile. After permission, the prosecution cross-examined him. There cannot be any dispute that, simply because a witness turned hostile, his evidence would not efface from the record, but such part of his testimony which inspires confidence can be used to corroborate the other evidence, if any, available on record. 15. P.W.2-the accompanying witness simply stated that after typing in computer, the accused took print out, signed on letter and took acknowledgement from the accused; then, the accused kept acknowledgement receipt in the file lying on his table; that when P.W.1 asked the accused in telugu ‘IVVALA’(‘shall I give’), the accused replied affirmatively; then P.W.1 took the cover and handed over the same to the accused, who received the same with his right hand and kept in his shirt pocket. Even if the evidence of P.W.2 is to be accepted as true and correct, that does not indicate that there was a demand from the accused for showing any official favour in discharge of his duties as public servant. Admittedly, there is no evidence to show that the accused demanded and accepted money for showing an official favour as a public servant. 16. Further more, the documents that were to be returned to P.W.1 were lying in the suit before the competent Court, and therefore, the question of giving return of the documents by the accused does not arise. At best, he can give a certificate stating that P.W.1 discharged entire loan due to the Bank. If really there was a demand and acceptance for showing any official favour, he would not have taken print out of the loan discharge certificate from the computer printer and would not have given it to P.W.1 without asking him anything and even without giving M.O.1-tainted currency notes to him. Even assuming for a moment that he received the amount from P.W.1 and his right hand fingers and the inner lining of shirt pocket, when subjected to Sodium Carbonate solution test, the solution in glass tumblers turned into pink colour, that by itself, is not a ground to infer that the accused committed the offence punishable under Section 7 and 13(1) (d) read with 13(2) of the Act, in view of the decision in Suraj Mal v. State (Delhi Admn.)[2], wherein it is held thus: “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.” 17. The trial Court, after an elaborate consideration of the evidence on record, rightly acquitted the respondent. There are no compelling or substantial reasons to interfere with the impugned judgment. 18. The Criminal Appeal is devoid of merit and is, accordingly, dismissed, confirming the judgment dated 23.12.2002 in Calendar Case No.19 of 2001 on the file of the Special Judge for CBI Cases, Hyderabad. ------------------- (K.C.Bhanu, J.) 02.12.2009 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 549 of 2003 Date: 02.12.2009 Between: State, rep. by C.B.I., Special Public Prosecutor, High Court, Hyderabad. …Appellant And J.Ramachandra Rao …Respondent THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No. 549 of 2003 02.12.2009 [1] AIR 1962 Supreme Court 439 [2] (1979) 4 Supreme Court Cases 725