* HON’BLE SRI JUSTICE B.N.RAO NALLA + Criminal Appeal No.389 of 2004 % Date 07.09.2011 B e t w e e n: # M.Adinarayana s/o. M.Surya Rao Appellant/Accused A n d $ State of A.P. rep. by ACB, City Range, Hyderabad. Respondent/Complainant ! Counsel for the Appellant: Sri C.Praveen Kumar ^ Counsel for the Respondent. : Sri. R.Ramachandra Reddy, S.C. for ACB Cases < GIST : > HEAD NOTE : ? Cases referred : [1] (2009) 3 Supreme Court Cases 779 2 AIR 2010 Supreme Court 1589 3(2002)10 SCC 371 4 AIR 1980 SC 873 5(2006) 12 SCC 277 THE HON'BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL APPEAL No. 389 OF 2004 JUDGMENT: The accused in C.C.No.19 of 1994 on the file of the Principal Special Judge for SPE and ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad, aggrieved by the judgment dated 10.02.2004 passed by the said court whereby, the accused was found guilty for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (for short ‘the Act’) and was convicted and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence punishable under Section 7 of the Act and further sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act and both the sentences of imprisonment were directed to run concurrently, filed this appeal. 2. The case of the prosecution in brief is that the appellant-accused being the Deputy Director, Town and Country Planning, Andhra Pradesh, Hyderabad had demanded Rs.10,000/- from P.W.1-complainant on 20.8.1993 in his office at A.C. Guards, Hyderabad, as gratification other than legal remuneration as a motive or reward for showing the official favour for recommending and forwarding the file pertaining to the final layout plan submitted by P.W.1 to the higher officials; that subsequently he had reduced the amount from Rs.10,000/- towards illegal gratification to Rs.1,000/- at the request of PW.1; that on P.W.1 lodging a complaint, the A.C.B. officials registered a case against the appellant-accused after obtaining the necessary permission from the Director General, A.C.B. Cases; that Deputy Superintendent of Police, (P.W.8) has registered a case in Rc.No.10/ACB-CR/93 and issued Ex.P.11- FIR and that a requisition was sent to the Chief Engineer, Panchayat Raj for sending two officers to assist as mediators to the trap. Accordingly, P.W2 and one Ashok Reddy, AEE were deputed to act as mediators; that at about 4.30 P.M. on the same day after verifying the complaint (Ex.P.1) being preferred by P.W.1, pre- trap proceedings were initiated and after preparing the first mediators’ report, they reached the office of the appellant-accused at 5.50 P.M. P.W.1 entered the office of the appellant-accused at 6.50 P.M., and he came out of the office of the appellant-accused and gave the signal and on his signal, the trap party rushed into the office room of the appellant-accused. The phenolphthalein test conducted on right hand fingers of the appellant-accused was proved positive. Thereafter the alleged bribe amount of Rs.1,000/-, i.e., Rs.100/- denomination of currency notes 10 in number amounting to Rs.1,000/- was recovered from his shirt pocket. Accordingly, second mediators’ report- Ex.P.4 was drafted and after completion of the investigation of the case, charge sheet was filed against the appellant-accused. 3. The learned Sessions Judge has framed the charges under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and the appellant-accused has pleaded not guilty for the said charges. 4. The prosecution in order to establish the said charges examined P.Ws.1 to 9 and got marked Exs.P.1 to P.13 and M.Os.1 to 8. However, no witnesses were examined and no documents were marked on behalf of the defence. 5. It is the case of the appellant-accused that he has not demanded any bribe amount or voluntarily accepted the same and that the same was thrusted into his shirt pocket and the prosecution has failed to prove the offences punishable under Sections 7 and 13(1)(d) of the Act beyond reasonable doubt. 6. P.W.1 is the complainant. He was examined to prove the fact that the appellant-accused had demanded and accepted the bribe amount but he turned hostile to the prosecution and he did not support the case of the prosecution. Therefore, the case of the prosecution as to the demand and acceptance of the bribe amount by the appellant-accused stands disproved. 7. P.W.2 is one of the mediators. He stated that the bribe amount was recovered from the shirt pocket of the appellant-accused. However, it is settled law that mere recovery by itself is not sufficient to prove the case of the prosecution. It is, in the circumstances, contended that the appellant-accused was with enjoined power to show any official favour to P.W.1 since he was the concerned authority to process the application of P.W.1. It is also further contended that the ingredients of Section 7 of the Act i.e., demand, acceptance and showing the official favour cannot be presumed in view of Section 20 of the Act since P.Ws.1 and 2 did not testify as to the said ingredients. It is only P.W.2 who has stated that the tainted amount was recovered from the appellant-accused, and as per the decision rendered by the Apex Court in C.M. GIRISH BABU v. CBI, COCHIN, HIGH COURT OF KERALA[1], mere recovery of the tainted amount from the accused officer is not sufficient to prove the case of the prosecution. 8. On the other hand, the evidence of complainant (P.W.1) is to the effect that when he entered the office room of the appellant-accused, he was told that the office time was over and appellant-accused asked him to come on the next day ; that while he (P.W.1) was coming out of the office, the person who took him there, asked him to somehow give the tainted currency notes to the appellant-accused; that then at his instance, he (P.W.1) kept the currency notes in the shirt pocket of the appellant-accused saying that the amount consisted of Rs.1,000/-and that though the appellant-accused asked him to stop, he did not stop there and he moved out from there. 9. P.W.3 is the Retired Deputy Director of Town & Country Planning. He was examined to prove that the appellant- accused had shown the official favour to P.W.1. However, his cross- examination reveals that the file of P.W.1 never went to the appellant-accused. 10. P.W.4 is the Assistant Director, Town & Country Planning of Telangana region. His evidence discloses that the file had come to him on 27.7.1993 and he recommended for preparation of final layout plan and sent to the appellant-accused. However, in his cross- examination, he has admitted that from the note file Ex.P.9, it is clear that it went to the appellant- accused only once on 27.7.1993 and it was signed by him on 28.7.1993. Therefore, it is contended that there was no scope for the appellant-accused to show any official favour to P.W.1. He did not show any favour to P.W.1 since P.W.4 has stated that the appellant-accused had accepted his proposal as the file was sent to him on 27.7.1993 and it was signed by the appellant-accused on the next day itself. 11. P.W.5 is the Assistant Secretary to Government, M.A & U.D Department, Secretariat, Hyderabad. He has only stated as to granting of sanction to the prosecution as against the appellant-accused. 12. P.W.6 is the retired Director of Town & Country Planning. He has testified that the relevant file of P.W.1 had come to him on 29.7.1993 and during that time, the appellant-accused being the Deputy Director of the Town Planning authority, had also approved the said file. In his cross- examination, he has testified that when the file of P.W.1 was sent by the Assistant Director of the Town Planning on 27.7.1993, the appellant-accused signed on it on the same day. Therefore, it is contended that since the file was processed in the normal course by all the concerned officials of Town Planning Department, the appellant-accused had no opportunity of showing any favour to P.W.1 and hence the question of doing any official favour to P.W.1 does not arise. 13. P.W.7 is one of the Attenders of the office of the Director of Town Planning at the relevant time and he was working as an Attender in the office of the appellant-accused. He only testified that a person approached him on 20.8.1993 and sought permission to enter the office of the appellant-accused who in turn went inside the office and obtained permission of the appellant- accused and thereafter allowed that person to enter into the office. His evidence is of no consequence to the case of the prosecution as he did not identify and did not state that the person who approached him on that day was P.W.1. 14. P.W.8 is the Deputy Superintendent of Police of A.C.B who arranged the trap on the appellant-accused. He has only stated as to the procedure adopted by him in laying the trap on the appellant-accused and thereafter as to recovery of the tainted amount from his shirt pocket. However, it is to be seen that his evidence neither discloses any demand and acceptance of the tainted bribe amount nor it shows that the appellant-accused owed an obligation of showing the official favour to P.W.1. At the most, it can be said that the evidence of P.W.8 supports the evidence of P.W.2 as to recovery part of the alleged tainted bribe amount. However, it is reiterated that a mere recovery of the tainted amount itself is not sufficient to prove the case of the prosecution. 15. The last witness P.W.9 is the Inspector of A.C.B, who continued the further investigation of the case. His evidence discloses that after obtaining sanction of the competent authority to prosecute the case of the appellant-accused, he had examined and recorded the statements of some of the witnesses and after completing the investigation, he has filed the charge sheet. Since he is the Investigating Officer who continued the further investigation and laid the charge sheet, his evidence is also of no consequences to the case of the prosecution. His evidence also discloses that though he got examined P.W.1 before the Magistrate and though his statement was recorded under Section 164 of Cr.P.C, the witness did not support the case of the prosecution. 16. In view of the aforesaid evidence of the prosecution witnesses, the whole thing boils down to the effect that whether the recovery of tainted bribe amount itself is sufficient to prove the offence under Section 7 of the Act. None of the evidence of the prosecution witnesses discloses that the appellant-accused had demanded the gratification from P.W.1 in order to show him any official favour and that the said amount was given by P.W.1 and accepted by the appellant- accused towards consideration for showing any official favour. Moreover, the evidence of the crucial witness who is none other than the complainant (P.W.1) did not support the prosecution case at all. He was declared hostile to the prosecution and as such it is contended that in the circumstances the provisions of Section 20 of the Act are of no avail. They cannot be pressed into service to presume that the appellant-accused had demanded and received the tainted bribe amount from P.W.1. 17. In support of his contention, he relied on the decision of the Apex Court in BANARASI DASS v. STATE OF HARYANA[2] wherein it was held: “It is a settled canon of criminal jurisprudence that the conviction of an accused cannot be founded on the basis of inference. The offence should be proved against the accused beyond reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that regard.” 18. Of course, P.W.2 has stated that the tainted amount was recovered from the shirt pocket of the appellant-accused and the same is sustainable. However, to constitute an offence under Section 7 of the Act, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Prudence demands that there should be some corroboration in support thereof. In such cases, what is required is that there must be a demand and there must be acceptance, in the sense that the accused has received the illegal gratification. Mere demand by itself is not sufficient to establish the offence. However, in this case, all the witnesses speak that to get the approval of the appellant-accused, P.W.1 put the tainted money in the shirt pocket of the appellant-accused as an illegal gratification. Further, in view of umpteen number of decisions rendered by the Apex Court, mere recovery of money from the accused by itself is not sufficient in the absence of substantive evidence for demand and acceptance. 19. In the circumstances, it is contended that the court should follow the principle that mere recovery of tainted money from the appellant-accused from the circumstances under which it is paid would not be sufficient to prove the offence against the appellant-accused despite the provisions of Section 20 of the Act as to presumption of acceptance of gratification. The prosecution shall prove the facts of the case i.e., the demand and acceptance of illegal gratification which are sine qua non to prove an offence under Sections 7 and 13 of the Act. 20. It is also further contended that the court below has erred in considering Ex.P.1 complaint lodged by P.W.1 and also the evidence of P.Ws.2 and 8. It is contended that Ex.P.1- complaint though stated to be in the writing of P.W.1, it cannot be considered to be a substantial piece of evidence and it can only be made use for corroborating and contradicting the maker thereof. Therefore, the observation of the court below that it did not find any grounds for disbelieving the evidence of P.Ws.2 and 8 is erroneous. The proposition is unknown to criminal jurisprudence, particularly in view of P.W.1 himself disowning Ex.P.1-complaint. He has testified that he drafted Ex.P.1-complaint to the dictation of P.W.8 as if the appellant-accused demanded money for doing official favour and accordingly he drafted the complaint. 21. It is briefly contended on behalf of the appellant-accused that that Ex.P.4- mediators report is a record of investigation prepared by the Investigating Officer in the presence of the mediators. What the witnesses and the accused have stated is corroborated in it. Ex.P.4-mediators’ report is a record of investigation containing the statements of witnesses recorded under Section 161 Cr.P.C. Therefore, it is not substantial piece of evidence and it is bound to be hit by Section 162 Cr.P.C. So far as the initial explanation offered by the appellant-accused is concerned, it is contended that it is inadmissible in evidence under Section 25 of the Indian Evidence Act as the initial explanation amounts to either a statement and/or a confession made before the Police Officer. As such Ex.P.4-mediators’ report cannot be looked into. So far as the evidence of PW.2, one of the mediators and PW.8-Investigating Officer is concerned, their evidence may be relied on to the extent of recovery of the alleged tainted bribe amount from the shirt pocket of the appellant- accused. However, the evidence of PWs 2 and 8 as recorded in Ex.P.4-mediators’ report, so far as the statement of the appellant- accused in the nature of confession, ought not to have been recorded by the court. So far as the decision in Hazarilal Lal’s case (supra 3) is concerned, it is contended that the facts therein are altogether different. In that case, the accused on seeing the trap party approaching him, he threw away the money and the said money was recovered from outside the compound and it was not recovered from the possession of the accused. Since PW.1- the bribe giver- decoy turned hostile, the court relied upon the evidence of Investigating Officer. However, in this case on hand, the appellant-accused has not disputed the recovery of the amount from his possession. His evidence is that the said amount was thrusted into his shirt pocket. Referring to the decision of the Apex Court in PUNJABRAO v. STATE OF MAHARASHTRA[3] it is contended that accused is not required to establish his defence by proving beyond reasonable doubt but can establish the same by preponderance of probability. It is further contended that the explanation need not be given at the time of trap and it can be also given subsequent to the trap proceedings. In any case, it is contended that it is primary duty of the prosecution to prove the essential ingredients of Sections 7 and 13 of the Act. It is only when the said requirement is complied with, the explanation comes into picture which could be made at any stage of the proceedings even at the stage of examination of accused under Section 313 Cr.P.C. Therefore, it is contended that the explanation offered by the appellant-accused that the alleged bribe amount thrusted into his pocket is cogent and trustworthy. It is the version of the complainant-PW.1 himself which is to the effect that at the instance of a person from Ananthapur District who happened to be present at the office of the appellant-accused, he again went to the office of the appellant-accused and found him praying God by folding hands and then kept the currency notes in the shirt pocket. The denial of the said fact by PW.2 in his cross examination is deliberate. No value can be attached to such evidence. In view of the facts and circumstances of the case and also having regard to the decisions of the Apex Court in C.M. Girish Babu’s case (Supra 1) and Baanarsi Dass’s case (Supra 2), it cannot be said that there was legal evidence sufficient to warrant conviction of the appellant-accused and as such, the trial court is not justified in observing that the defence of the accused appears to be nothing but his invention to save himself from the case and that the prosecution had proved its case beyond all reasonable doubt. 22. On the other hand, it is the case of the respondent-State that the appellant-accused had demanded and accepted the tainted bribe amount from PW.1 to do official favour of processing the final lay out as the same was pending before him since he was the competent person having power to finalise the said lay out; that the defence of the appellant-accused that the said amount was thrusted into his pocket cannot be sustained; that the appellant-accused had admitted having received the said bribe amount and kept in his front shirt pocket and that after accepting the said tainted bribe amount from PW,1, the appellant-accused had assured him that he would do needful and by saying so he started looking into the file. Therefore, it is its case that the defence put up by the appellant-accused that the said amount was thrusted into his pocket while he was praying God stands falsified by statement recorded in Ex.P.4-mediators report that PW.1 came to him when he was to leave the office and kept a wad of Rs.100/- currency notes on his table which he kept in his shirt pocket. It is also its case that the appellant-accused has falsely stated in Ex.P.4 that just before the raid, his son had visited him in the office and handed over the amount for safe custody. In this regard, the evidence of PWs 2 and 8 is emphasized. The evidence of PW.2 indicates the compliance of the procedure for trap proceedings and recovery of the tainted amount from shirt pocket of the accused and subjecting both his hands’ fingers to phenolphthalein test and his right hand fingers turning pink and also subjecting the inner liner of his shirt pocket to the test of freshly prepared sodium carbonate solution which too gave positive result. PW.2 denied a suggestion in his cross examination as not true that the appellant-accused was offering prayer to God when PW.1 entered his room and kept the currency notes in his shirt pocket. The evidence of PW.8 is also on similar lines as that of PW.2. However, he has stated that the office Attenders of the appellant-accused when examined before the mediators, denied having seen any transaction that took place between PW.1 and the appellant-accused in his office and that they had also stated that they did not hear any conversation between PW.1 and the appellant-accused. PW.8 has denied a suggestion in his cross examination as not true that the contents of Ex.P.1-complaint were taken down by PW.1 to his dictation with an intention to roping the appellant-accused into the case. Lastly, it is its case that since the appellant-accused has failed to explain how he came into possession of the tainted bribe amount, the prosecution should not be held to have not been able to prove its case. It relied on the decision of the Apex Court in HAZARI LAL v. THE STATE (DELHI ADMINISTRATION)[4], wherein it was held that when the evidence of trap laying officer is found entirely trustworthy, there is no need to seek any corroboration and such evidence cannot be treated on the same footing as the evidence of accomplices requiring corroboration. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance. It also relied on the decision of the Apex Court in B.NOHA v. STATE OF KERALA AND ANOTHER [5] wherein it was held to the effect that when an amount is found to have been passed to the public servant, the burden is on public servant to establish that it was not by way of illegal gratification. 23. Ex.P.1 is the complaint, wherein PW.1 stated that he was informed by the Gram Panchayat, Pebbair village, Mahebubnagar District that the final lay out with L.P. number was not received from the Office of the Director, Town and Country Planning, Hyderabad. As such, he went to the Office of Director, Town and Country Planning, Hyderabad on 20.08.1993 and met the appellant-accused, who was the Deputy Director, Town and Country Planning and requested him to forward his application to higher officials. For that purpose, the appellant-accused demanded an amount of Rs.10,000/- as bribe. When, PW.1 expressed his inability to pay such huge amount of Rs.10,000/-as bribe, the appellant-accused demanded at least to pay Rs.1000/- as bribe for showing an official favour. Further, PW.1 stated that the appellant-accused asked him to pay the bribe amount at 6.00 p.m. on that day. PW.1 in his cross examination by prosecution admitted that Ex.P.1-complaint was given by him to DSP, ACB and that it is in his hand writing. The evidence of PWs 2 and 8 goes to show that PW.1 has given complaint voluntarily and he admitted the contents thereof. Further, PW.8 denied a suggestion that the contents of Ex.P.1- complaint were taken down by PW.1 to his dictation with an intention to implicate the appellant- accused. Though, PW.1 turned hostile, his evidence in the cross examination cannot be discarded in view of the facts and circumstances of the case. The evidence of PW.4-Assistant Director is that on 27.7.1993 he recommended for preparation of final lay out and marked the file to the Deputy Director i.e. appellant-accused. The evidence of PW.8 is that he seized the file during post-trap proceedings. It is seen that on the date of trap, the file of PW.1 was pending with the appellant-accused. The evidence of PWs 3, 5, 6, 7 and 9 is not helpful to the prosecution to establish that the appellant-accused demanded and accepted the tainted amount from PW.1. But