THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.512 of 2004 BETWEEEN: State: Range Inspector-II … Appellant AND 1. Sri Mandalapu Veeraiah & another. … Respondents THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.512 of 2004 JUDGMENT: The State filed this appeal against acquittal recorded by the Special Judge for SPE and ACB cases, Vijayawada in CC.No.1 of 1994 by judgment dated 18.11.2003 of the respondents 1 and 2/A1 and A2 for offences under Sections 7 and 13(1)(d)/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act). A1 was working as Deputy Commercial Tax Officer, Repalle, Guntur District. A2 was working as Senior Assistant in the same office. PW1 who is the de facto complainant, is proprietor of Komala Vilas which is a Meals Hotel at Repalle. On 22.07.1993, A1 inspected PW1’s hotel and one week thereafter, his staff verified the stocks and on 11.08.1993, PW1 presented the accounts of his hotel for the year 1992-93 to A1 for passing Assessment Order. Prior to it, PW1 was not paying any sales tax. 2. It is alleged that on 11.08.1993, A1 demanded Rs.5,000/- as bribe from PW1 for passing and delivering Assessment Order in respect of his business for 1992-93 and to close the said file and that when PW1 pleaded with A1, he reduced demand of bribe to Rs.4,000/-. With the said allegations, PW1 gave Ex.P1 report to officers of the Anti Corruption Bureau(ACB), Guntur on 27.08.2003. PW5, who is the Deputy Superintendent of Police, ACB, arranged trap for A1 on 30.08.1993. PW3 functioned as one of the mediators in Ex.P12 pre-trap proceedings when phenolphthalein powder was administered to MO.1 cash of Rs.4,000/-. It is alleged that when PW1 went to the office of A1 on 30.08.1993 and requested for Assessment Order, A1 demanded for the bribe amount of Rs.4,000/- and that when PW1 was about to hand over MO.1 tainted cash to A1, A1 rang Buzzer and called A2 and asked A2 to receive the said amount from PW1 and that accordingly, A2 received MO.1 tainted cash from PW1. Subsequently, after receiving pre-arranged signal, the raid party consisting of PWs 3 and 5 and others rushed into the office of the accused and seized MO.1 from A2. Plea of the accused is that PW1 paid MO.1 cash of Rs.4,000/- towards provisional tax. After considering the material on record, the lower Court found that A1 and A2 are not guilty of the charges. 3. In this case, there is no evidence of demand of bribe by A1 as PW1 turned hostile to the prosecution during trial in the lower Court. According to him, he gave Ex.P1 to the dictation of the ACB officials and gave Ex.P2 statement to the Magistrate under Section 164 Cr.P.C. due to coercion. He also denied Ex.P4 statement said to have been recorded by the Investigating Officer during investigation under Section 161(3) Cr.P.C. When PW1 did not support the contents of Ex.P1 First Information Report, it cannot have any evidentiary value as it has no substantive piece of evidence. There is no other evidence on behalf of the prosecution to prove the alleged demand for bribe made by A1 on 11.08.1993. No accompanying witness was there with PW1 when he handed over MO.1 tainted cash to the accused. 4. PW1 deposed that in July 1993, A1 inspected his hotel along with his staff and noted the stocks available in the hotel, verified cash balance in the hotel and that while leaving, A1 asked him to produce relevant bills for the stock in his office and that four days thereafter, he took the receipts for the stocks and produced before A1; and that 20 days thereafter, he produced his account books, bills etc. for passing Assessment Order in respect of his business for the year 1992-1993 and that when he asked the clerk for the Assessment Order, the clerk asked him to approach A1 and that he went to the chambers of A1 and requested him to pass Assessment Order. PW1 says that A1 informed him that he has to pay provisional tax of Rs.2,500/- per month totalling Rs.30,000/- a year, and asked him to pay provisional tax for two months, and that there was wordy quarrel between them and that he expressed his inability to pay the said tax and that A1 asked him to pay at least Rs.4,000/- and that therefore, he approached ACB authorities and gave Ex.P1 report. With regard to the trap on 30.08.1993, PW1 deposed that he went into the chambers of A1 in the first floor and that A1 was looking into the files and that another person was also found in his chambers and that A1 enquired the reason for his visit and that when he informed A1 about he brining the amount of Rs.4,000/-, A1 pressed buzzer and that A2 came there and that A1 instructed A2 to receive the amount of Rs.4,000/- from him and that as per his instructions, he handed over the tainted amount of Rs.4,000/- to A2 and that immediately, he came out of the office and gave pre-arranged signal and that the Deputy Superintendent of Police and others came there. Evidence of PW1 reads that A1 demanded Rs.4,000/- from him towards provisional tax for two months and that PW1 paid MO.1 cash towards the said demand. There is absolutely no evidence of demand of any bribe by A1 from PW1. It is not the prosecution case that A2 demanded any bribe amount for him from PW1. When A1 instructed A2 to receive Rs.4,000/- being paid by PW1, A2 received the same from PW1. In Ex.P20 post-trap proceedings, it is noted that A1 did not give any statement to PW5 about the tainted cash. He only pleaded about his retirement in immediate future and about he having a widowed daughter. It is further stated in Ex.P20 that A2 gave spontaneous statement to PW5 to the effect that when A1 instructed him to receive MO.1 cash from PW1, he received the same. PW3 and PW5 believed to the contents of Ex.P12 post- trap proceedings. Evidence of PWs 1, 3 and 5 and Ex.P2 proved that MO.1 tainted cash was recovered from possession of A2. The statement of PW1 contained in Ex.P12 mediators report is inadmissible in evidence as it is hit by Section 161(3) Cr.P.C. When recovery of MO.1 tainted cash from A2 is proved, then the presumption under Section 20 of the Act comes into operation to the effect that A2 obtained the said amount from PW1. Even PW1’s evidence is also to the effect that he handed over MO.1 to A2. But according to PW1, he brought the said amount towards provisional tax for his business for two months. In the absence of any proof of demand of bribe in this case, the said evidence of PW1 about nature of payment of cash covered by MO.1 reverts the presumption under Section20 of the Act. 5. In Banarsi Dass Vs. State of Haryana[1], the Supreme Court after considering the entire previous case law on the subject, held as follows: “11. To constitute an offence under Section 161 of the I.P.C., it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5(1)(d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused.” 6. Since the prosecution could not observe the evidence of PW1 properly until trial and since PW1 did not support the prosecution during trial in the lower Court and since there is no evidence of either demand of bribe or acceptance of bribe by A1 or A2 in this case, the lower Court is justified both in law as well as on facts in recording finding to the effect that A1 and A2 are not guilty of the charges framed against them. There are no circumstances to come to a different conclusion by this Court in this appeal. 7. Hence, the Criminal Appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J Dated: 26.04.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJUL CRIMINAL APPEAL No.512 of 2004 DATED: 26.04.2011 ysk [1] AIR 2010 SUPREME COURT 1589