IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.652 of 2004 Date:16.12.2010 Between: State, represented by Deputy Superintendent of Police, A.C.B., Visakhapatnam. .....Appellant AND: K.V.S.N. Gupta, Drugs Inspector, Visakhapatnam. ....RESPONDENT THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.652 of 2004 JUDGMENT: This is an appeal filed under Section 378 (8) & (1) Cr.P.C against the judgment passed in C.C.No.28 of 2000 by the III Additional District and Sessions Judge-cum-Special Judge for A.C.B Cases, Visakhapatnam on 13.11.2003. The appellant herein is the complainant in the above said case. According to the complainant, the respondent-accused officer was prosecuted for the offences under Sections 7, 11, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (in short, the Act) alleging that the accused-officer was working as Drug Inspector in Visakhapatnam as on 12.11.1993 as such he was a public servant within the meaning of Section 2( c ) of the Act. The accused-officer is having jurisdiction over the Medical Shops for their proper functioning and any irregularities found therein would be reported to the Assistant Director, Drugs Control (Administration), Rajahmundry (P.W.3). Jerripothula Prasada Rao (P.W.1) and J. Srinuvasa Rao (P.W.2) are brothers. A Medical Shop in the name and style of S.K.M.L. Medical & General Stores is being run in Relliveedhi, Visakhapatnam and P.W.2 is the owner of the medical shop in the record but it is being maintained by P.W.1. On 04.03.1993, the accused-officer inspected the said medical shop and having found some, irregularities submitted a report analysting the irregularities on 03.04.1993 to the Assistant Director, Drugs Control (Administration), Rajahmundry (P.W.3) and he in turn issued show-cause notice to the P.W.2 on 05.08.1993 and on receipt of the explanation to show-cause notice from the P.W.2, P.W.3 issued proceedings in Rc.No.1815/RO2/93 dated 19.10.1993 suspending the working of S.K.M.L. Medical & General Shop for short period and served the same to the accused-officer by P.W.3. The accused-officer was harassing P.W.2 stating that he would send his brother (P.W.1) to jail and to avert it, he demanded Rs.10,000/- as bribe and reduced to Rs.5,000/- and the accused-officer visited the shop of P.W.2 on 08.11.1993 and wanted him to get ready with the amount of bribe within two or three days and P.W.1 being the defacto-owner of the medical shop did not agree to pay the demanded bribe amount. Then the accused-officer threatened the P.W.1 stating that his brother would be sent to jail and served the suspension order on P.W.2 on 11.11.1993 at 12.00 noon and at the request of the P.W.1, the accused-officer permitted him orally to run the business so as to enable him to issue the bills to those who demands bills left some blank bills and put his signature on Bill No.240, in token of the fact that he stopped issuance of bills and requested P.W.1 to come to his house and the P.W.1 went to the house of the accused-officer and the accused-officer handed over three video cassettes, two of them meant for mixing and one for dubbing to get it done in the studio run by him and wanted him to bring Rs.3,000/- as bribe with the finished cassettes on 12.11.1993. Aggrieved by the same, P.W.1 gave a complaint to the Deputy Superintendent, A.C.B on 11.11.1993 at 3.00 p.m. The accused-officer was caught red-handed on 12.11.1993 at about 1.30 p.m in his house in Flat No.205, ‘Crescent Towers’ when the accused-officer demanded and accepted a bribe amount of Rs.3,000/- demanded from P.W.1 together with the finished cassette bearing No.36801. The chemical test was positive and the cassette as well as the tainted amount were recovered at the instance of the accused-officer from the cassettes stand near the window door and the explanation given by the accused-officer was far from satisfactory. The lower court after hearing the prosecution and defence counsel framed the charges under Section 7 and 13(2) read with 13(1)(d) of the Act and the accused pleaded not guilty for the said charges. The prosecution in order to establish the charges, examined P.Ws.1 to 5 and got marked Exs.P.1 to P.25 and M.Os.1 to 11 on their behalf. During the cross-examination of P.W.1, Exs.D.1 to D.3 were marked and during the cross-examination of P.W.2, Exs.D.4 and D.5 were marked. On behalf of the accused-officer, D.W.1 was examined and Exs.D-6 to D-8 were marked. The lower court has taken into consideration the following points for determination. 1. Whether the accused officer is a public servant withinthe meaning of Section 2( c ) of the Act? 2. Whether there is a valid sanction for prosecution of the accused officer? 3. Whether the prosecution proved the guilt of the accused officer beyond all reasonable doubt of the charges under Sections 7 and 13(2) read with 13(1)(d) of the Act? The lower court held the point Nos.1 and 2 in favour of the prosecution and the point No.3 against the prosecution and thereby found the accused not guilty for the charges under Sections 13(1) (d) read with 13(2) of the Act and the accused was acquitted under Section 248(1) Cr.P.C. Aggrieved by the said acquittal, the prosecution has filed the present appeal by obtaining leave of this Court. Now the point for consideration is whether the prosecution could be able to establish the charges under Sections 7 and 13(1)(d) read with 13(2) of the Act beyond all reasonable doubt against the accused-officer. The lower court held the said charges as not proved by the discarded evidence of P.Ws.1 and 2 as they are not trustworthy witnesses and the motive of the P.Ws.1 and 2 to implicate the accused in a false case and as the prosecution has failed to establish the demand made by the accused-officer as alleged by the prosecution for doing official favour. The learned Special Public Prosecutor appearing for the appellant has pleaded that all the findings given against the P.Ws.1 and 2 in the earlier cases is not relevant for discarding their evidence and at the most their evidence has to be scrutinised carefully and the accused started demanding the illegal gratification on 10.08.1993, 20.10.1993, 08.11.1993 and finally on 11.11.1993. Therefore, the motive of the P.W.1 to implicate the accused for serving the notice on 11.11.1993 cannot be taken as a ground for disproving the case of the prosecution. He further pleaded that the demand made by the accused on 10.08.1993, 20.10.1993, 08.11.1993 and 11.11.1993 was established by the prosecution by producing necessary documents and as such the presumption under Section 20 of the Act is available to the prosecution and thus the prosecution could be able to establish the charges as against the accused beyond all reasonable doubt. The learned counsel for the respondent, on the other hand, pleaded that the P.Ws.1 and 2 are in the habit of taking the assistance of A.C.B officials to threaten the Government Officials whenever they interfere with their illegal business and as such the lower court has rightly discarded the evidence of P.Ws. 1 and 2 taking into consideration of the findings given in the earlier cases, tried before the same court. The learned counsel further pleaded that the order of suspension of business of the P.W.2 was served on P.W.1 on 11.11.1993 at 12.00 noon and on the same day at 3.00 p.m, a complaint was lodged by P.W.1 that itself shows only after the service of the suspension order, they preferred the present complaint and as such the prosecution could not be able to establish the earlier demand made by the accused officer and further pleaded that when the prosecution could not be able to establish the demand made by the accused officer, the presumption under Section 20 of the Act is not available to the prosecution. In support of his contention, the learned counsel for the respondent has also relied upon a decision rendered in OM Parkash v. State of Haryana[1] wherein it was held that “It is not a case where the burden of proof was on the accused in terms of Section 20 of the Act. Even otherwise, where demand has not been proved, Section 20 will also have no application, by relying upon a decision rendered in T. Subramanian v. State of T.N[2].” The other decision relied upon by the learned counsel for the respondent is rendered in V.Venkata Subba Rao v. State of A.P.,[3] wherein it was held: “That the presumption cannot be raised when the demand is not established by the prosecution.” The next contention of the learned counsel for the respondent is that in case of appeal against the acquittal, this Court cannot interfere with the findings recorded by the lower court unless the judgment of the lower court is perverse and without any basis. In support of his contention, he relied upon a decision rendered in Arulvelu and another v. State[4] wherein the Supreme Court after relying upon the various earlier judgements has provided guidelines for the appellate court in dealing with the cases in which the trial courts have acquitted the accused. 1) The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trail court’s acquittal bolsters the presumption that he is innocent. 2) The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law, but the appellate court must give due weight and consideration to the decision of the trial court. 3) The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. 4) The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has very substantial and compelling reasons for doing so. 5) If two reasonable or possible views can be reached-one that leads to acquittal, the other to conviction- the High Court/appellate courts must rule in favour of the accused. It is also further held that an order of acquittal should not be lightly interfered with even if the Court believes that there is some evidence pointing out the finger towards the accused. The appellate court would not be justified in setting aside the trial court judgement unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly un-sustainable in law. The other decision relied upon by the learned counsel for the respondent is in Bhaskar Ramappa Madar v. State of Karnataka[5] wherein also the same principles as laid down in the earlier decisions were reiterated. Therefore, in view of the above said decision, the judgement of the trial court has to be examined whether it is based on legal evidence and whether there are any two reasonable or possible views to come to the conclusion of acquittal or conviction and if so whether the acquittal of the accused officer by the lower court is justified. The learned counsel for the appellant has pleaded that when the amount is recovered from the possession of the accused in the trap proceedings that itself conclusively proves the demand made by the accused and in support of his contention, he relied upon a decision rendered in Maha Singh v. State[6] wherein it was held that “Where in prosecution of an accused (Head Constable of a police station) for offence under Section 161, IPC and Section 5(2) read with Sec.5(1)(d) of the Act there was a clinching circumstance that a currency note of Rs.10/- was recovered from the left side front pocket of the shirt of the accused and there was nothing to show that the currency note was recovered from his pocket being wrapped inside a particular purchee, the arrival of Inspector being immediately after the putting of money inside pocket of accused, the defence story of complainant giving ten rupee note wrapped inside the “purchee” was absolutely false. When there was a conclusive proof with regard to recovery of currency note from pocket of accused, deficiency of evidence of corroboration with regard to the negotiation of the accused with the complainant paled into insignificance, more so when no material prejudice resulted to the accused. A defence plea of planting of any incriminating object answer to a charge, to be successful must be or, at any rate. It was further held that in prosecution for offence of bribery the conduct of the accused will be relevant under Section 8 of the Evidence Act.” In the present case, according to the prosecution, the accused officer inspected the S.K.M.L. Medical & General Stores which is being maintained by P.W.1 on 04.03.1993 and found some irregularities and reported the same to the Assistant Director, Drugs Control (Administration), Rajahmundry, who is P.W.3 and he in turn issued a show-cause notice on 05.08.1993 to the P.W.2 and on receipt of the same, the P.W.1 approached the accused officer and the accused officer initially demanded Rs.10,000/- as bribe amount and reduced to Rs.5,000/- and the accused officer visited the shop on 08.11.1993 and wanted him to get ready with the amount of bribe within two or three days otherwise the accused officer would send the brother of P.W.1 to jail. Again the accused officer visited the shop of the P.W.1 and served the suspension order to close the business of medical shop for two days, but at the request of P.W.1, the accused officer permitted to run the business without issuing any bills and also requested him to hand over three video cassettes, two of them meant for mixing and one for dubbing to get it done in the studio run by him and wanted him to bring Rs.3000/- as bribe with the finished cassettes on 12.11.1993. Thereupon, the P.W.1 lodged a complaint with P.W.4 on 11.11.1993 and a trap was laid on 12.11.1993 at about 1.30 p.m in the house i.e., Flat No.205, "Crescent Towers” when the accused officer demanded and accepted a bribe amount of Rs.3,000/- demanded from P.W.1 together with the finished cassette bearing No.36801 and the said trap was successful and the amount was recovered at the instance of the accused officer. With regard to the conduct of P.Ws.1 and the lower court has observed that the P.Ws.1 & 2 gave a complaint in C.C.No.20 of 1989 against the Inspector of Endowment Department, Visakhapatnam and in the said case, the P.W.1 was observed to be a ‘lier’ and he has no regard for truth and his meeting with the accused officer on 16.08.1988 is highly unbelievable. In another case a trap was laid at the instance of the complaint was given by the brother of the P.W.1 against the Deputy Commercial Tax Officer in CC No.2 of 1993, and wherein it was the observation of the lower court that P.W.2 Bhagavatarao is not a ‘Novice’ and he is more experienced in arranging the traps against officers as he has got previous experience. His brothers were also very well experienced in holding complaints against the officials by utilising the services of A.C.B and the lower court further observed that the evidence of P.Ws.1 and 2 cannot be believed as they deliberately denied the earlier proceedings during their cross-examination. It is the case of the P.W.1 that the accused officer has harassing him by booking false case against his brother P.W.2 as he has kept the medicine of his cousin brother Ramesh in his shop with the consent of the accused officer. But, in the cross-examination he has deposed that Ramesh is his cousin brother and the licence of Charan Medicals does not stand in the name of his cousin Ramesh. P.W.4 is the Investigating Officer admitted that as per Ex.P.20, M/s. Sree Charan Medical belongs to N. Laxmana Rao and two others. Therefore, the oral permission of the accused officer to keep the alleged medicines of Charan Medicals by Ramesh in the shop of P.W.1 and consequently issuing of Ex.P.1 notice are not correct. Therefore, the allegation of harassing of booking of cases against the P.W.2 by the accused officer cannot be believed. With regard to Ex.P-5 report, P.W.1 in his deposition, deposed that he himself scribed Ex.P.5 at his house after 2.00 p.m, but in the cross-examination he admitted that he has not gone for lunch on 11.11.1993. Therefore, P.W.1 is not giving true version. As such the lower court has rightly discarded the evidence of P.W.1. According to the P.W.1, his brother P.W.2 received show cause notice from Rajahmundry A.C.B office and he went to the accused along with that notice and the accused stated that it is a big case and demanded Rs.10,000/- as a bribe as otherwise his brother P.W.2 would be sent to jail and when the P.W.1 expressed his inability to pay such huge amount, the accused officer reduced to Rs.5,000/- and again the P.W.1 expressed his inability to pay that amount. Then the accused officer stated to P.W.1 that if Rs.5,000/- is paid, the accused officer would manage and escape P.W.2 from the imprisonment and then the accused got typed an explanation and asked P.W.1 to get the signatures of his brother P.W.2 and hand over the same to the accused and asked him to get ready with the money within two or three days. Again on 20.10.1993 the accused came to P.W.1’s shop at about 11.00 a.m and asked about the bribe amount and when P.W.1 did not pay the same, the accused asked him not to disclose the same to the other members of the office and further stated that he will come to the shop within two or three days to receive the bribe amount. Again the accused came to the shop on 08.11.1993 and asked about the bribe amount but, P.W.1 did not pay the same and again the accused left the shop saying that again he will come to the shop within two or three days. The accused again came to the shop on 11.11.1993 at 12.00 noon and demanded the bribe amount and P.W.1 again expressed his inability to pay the same and again the accused left the shop by proclaiming that he would send his brother P.W.2 to jail. Thereupon, the accused served a notice dated 19.10.1993 to P.W.2 directing to close the shop for two days. But, in the cross-examination he stated that he did not remember the date of first demand of bribe by the accused. After receiving Ex.P.1 show cause notice, P.W.1 approached the accused and on the same day the accused made demand for bribe. Ex.P-1 is the show cause notice dated 19.10.1993 but in the chief examination he admitted that the said show-cause notice was served on 11.11.1993. Therefore, according to him the first demand was made on 11.11.1993. The learned Special Public Prosecutor appearing for the appellant tried to establish that the accused officer came into contact with P.W.1 on the earlier occasions that is on in the month of August, 1993 and again on 20.10.1993 and on 08.11.1993 and 11.11.1993 and therefore, it is probable that there was a demand for payment of the said amount from the beginning. But, the said version was demolished by the counsel for the respondent by eliciting from the cross-examination of the P.W.1 that the first demand was made after receiving Ex.P-1 show cause notice. Therefore, the lower court has rightly disbelieved the earlier demand before the trap either in the month of August, 1993 or on 20.11.1993, or on 08.11.1993 and on 11.11.1993. With regard to the demand made by the accused officer except the oral evidence, there is no evidence available to corroborate the evidence of P.W.1. Therefore, the lower court has rightly observed that the prosecution failed to establish the demand made by the accused officer for payment of bribe amount for doing official favour. With regard to the recovery of the bribe amount from the possession of the accused, P.W.3 is Mediator and P.S.4 is the Investigating Officer to speak about the trap. As per the evidence of P.W.3 on being questioned, about receiving of bribe amount the accused showed the tainted currency placed on a audio cassette stand and when the Deputy Superintendent, A.C.B asked the accused to pick it up and hand over the said currency notes, the accused stated that he did not receive that amount and refused to pick that amount. In the cross-examination, he admitted that there is a cup board in the Western side wall and the doors of the window are kept open. The audio cassette stand is just by the side of the window. The Investigating Officer P.W.4 also admitted that as per Ex.P-12, there is also small window near the cassette stand open. P.W.3 further admitted that initially the accused admitted receiving money from the P.W.1, but when he was asked to pick it up he denied keeping the said money on M.O.9. M.O.9 is the audio cassette. Therefore, from the evidence, it is established that the tainted money was not recovered from the possession of the accused but it was recovered from the Audio cassette stand. With regard to the result of the phenolphthalein test getting positive, the learned counsel for the respondent has pleaded that the cassette was received by the accused and that might have powder and as such the test has come positive result and that cannot conclude that the accused officer has received the tainted money from P.W.1. Thus, there is no positive evidence to establish that the tainted money was received by the accused from the P.W.1. With regard to conduct of the accused, P.W.3 has stated that they found the accused with a Banian and Lungi sitting in a Aluminium Chair in a relaxed mood. The Deputy Superintendent, disclosed his identity as well their identity to the accused. The accused became pale and started shivering and became speechless. As per the evidence of P.W.1, the accused officer was inside the house and when P.W.1 visited the said house, one lady called the accused officer and the accused officer came to the front room and in which the cassette stand was by the side of the window which was kept open. Therefore, the lower court has rightly observed that there is every possibility of planting tainted money on audio cassette before P.W.1 coming to the front room and the conduct of the accused is not of much use to establish the demand made by the accused officer from P.W.1. More over, as observed earlier, P.W.1 has lodged the complaint only on the date when he was served with show-cause notice, that itself shows that he has developed grudge against the accused officer for serving such a notice on him. Thus, from the above, it is evident that the prosecution could not be able to establish the recovery of the money from the possession of the accused and demand made by the accused officer from P.W.1 for doing official favour. Thus, the evidence available on record does not show the guilt of the accused. Therefore, in view of the decisions relied upon by the counsel for the respondent as there is no other view pointing out the accused to establish the guilt, this Court cannot interfere with the finding of acquittal passed by the lower court. Hence, I hold that the prosecution has failed to establish the charge beyond all reasonable doubt. Accordingly, the point is answered. In the result, the appeal is dismissed. ______________________ P. DURGA PRASAD,J December 16th, 2010 GK. THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.652 of 2004 Date:16.12.2010 Gk. [1] (2006) 2 Supreme Court Cases 250 [2] (2006) 1 SCC 401 [3] (2006) 13 Supreme Court Cases 305 [4] (2009) 10 Supreme Court Cases 206 [5] (2009) 11 Supreme Court Cases 690 [6] AIR 1976 Supreme Court 449