THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 1184 OF 2004. DATED: 10-11-2009. Between: State represented by Inspector of Police, Warangal Range, Khammam … Appellant/Complainant and S.Ram Gopal … Respondent/Accused THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NO. 1184 OF 2004. JUDGMENT: This Criminal Appeal by the appellant-State under Section 378 (1) and (3) Cr.P.C., is directed against the judgment, dated 24-03-2004, in C.C. No. 15 of 1994, on the file of the Principal Special Judge for SPE & ACB Cases, Hyderabad, whereunder and whereby the respondent-accused was acquitted of the offences punishable under Sections 7 and 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’). 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: The respondent-accused (hereinafter referred to as ‘Accused Officer’) was working as Sub Inspector of Police, Sathupalli Police Station, Khammam District. P.W.1 who is the de facto complainant is a resident of K.G.Siripuram village. He performed the marriage of his daughter Smt.Rajitha with one Venkateswar Rao, resident of Madhira village in the year 1986. After some time, some differences cropped up between Smt.Rajitha and her husband. On the complaint of the husband of Rajitha, the accused officer registered a case in Cr.No.72 of 1992 for the offences punishable under Sections 497 and 417 IPC against Rajitha and started harassing her by calling her to the Police Station now and then. Then the complainant approached the accused officer on 21-07-1992 along with one Sri Raj Kumar, Advocate and requested him not to harass his daughter, for which, the accused officer demanded bribe of Rs.5,000/- for doing official act of closing the criminal case. Again on 26-07-1992, the accused officer reiterated his demand and on the request of P.W.1, he reduced it to Rs.2,000/- and threatened P.W.1 that his daughter would be arrested if the demanded amount was not paid by the end of July, 1992. As P.W.1 was not willing to pay the bribe, gave a complaint to P.W.7 on 30-07-1992, basing on which, P.W.7 registered a case in Cr.No.1/ACB-WKH/1992. P.W.7 after completing all formalities, laid a successful trap against the accused officer on 31-07-1992 at Sathupalli Police Station. Thereafter, phenolphthalein test conducted on the right hand fingers of the accused officer yielded positive result and the tainted amount of Rs.2,000/- was recovered at the instance of the accused officer from his right side pant pocket of uniform. After obtaining Ex.P8-sanction from the competent authority, P.W.8 filed the charge sheet. 3. The learned Special Judge framed the following charges against the accused officer: CHARGE NO.1: That you being a public servant employed as Sub Inspector of Police, Sathupalli Police Station, Khammam District, on or about 31st day of July, 1992 at about 4.35 P.M. at Sathupalli Police Station, demanded and accepted a sum of Rs.2,000/- from P.Venkateswar Rao as gratification other than legal remuneration as a motive or reward for doing an official favour for closing the case in Cr.No.72 of 1992 of your Police Station against the daughter of P. Venkateswar Rao and thereby committed an offence punishable under Section 7 of the P.C. Act, 1988, and within my cognizance. CHARGE NO.2: That you being a public servant employed as Sub Inspector of Police, Sathupalli Police Station, Khammam District, on or about 31st day of July, 1992 at about 4.35 P.M. at Sathupalli Police Station, by corrupt or illegal means or by otherwise abusing your position as such public servant obtained for yourself a sum of Rs.2,000/- from P.Venkateswar Rao for closing the criminal case inCr.No.72 of 1992 of your station against the daughter of P.Venkateswar Rao and thereby committed criminal misconduct, an offence specified in Section 13(i)(d)(i) of the P.C. Act, 1988 punishable under Section 13(2) of that Act, and within my cognizance. When the above charges were read over and explained to the accused officer in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 8 and got marked Exs.P1 to P11 besides case property, 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 material found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused officer, D.W.1 was examined, but no documents were marked. 6. The trial Court upon consideration of entire oral and documentary evidence available on record, acquitted the accused officer. Challenging the same, State preferred this appeal. 7. Now the point that arises for consideration is whether the prosecution proved its case against the accused officer of the offences punishable under Sections 7 and 13 (1) (d) r/w 13 (2) of the Act beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 8. Mr. V.Ravi Kiran Rao, learned standing counsel appearing for ACB cases contended that the accused officer admitted about the receipt of money from P.W.1 on the date of trap, which was recovered from him, that the Sodium Carbonate Solution Test conducted on both hand fingers of the accused officer yielded positive result, that the defence of the accused officer that he received the amount towards the discharge of the loan is an after thought, that P.Ws. 1 and 2 were won over by the accused officer, that the evidence of prosecution witnesses would clearly go to show that the official favour to be shown to P.W.1 by the accused officer was pending as on the date of trap, that the evidence of P.Ws. 3 and 7 would go to show that tainted currency notes of Rs.2,000/- was seized from the possession of the accused officer and hence, he prays to set aside the order of acquittal passed by the trial Court. 9. On the other hand, learned counsel appearing for the accused officer contended that P.Ws. 1 and 2 did not support the case of the prosecution, that there is no other evidence to show that the accused officer demanded and accepted money, that when the demand and acceptance of money is not proved by the prosecution beyond all reasonable doubt, mere recovery of tainted currency notes from the possession of the accused officer is not an offence punishable either under Section 7 or under Section 13 (1) (d) of the Act, that proper explanation given by the accused officer for finding the tainted currency notes with him is also reasonably possible, that when two views are reasonably possible on the evidence adduced by the prosecution, the view which is favourable to the accused officer should be adopted and hence, he prays to dismiss the appeal. 10. In dealing with the appeal against the order of acquittal, the appellate Court is slow in interfering with the same. Though it has got full power to re-appreciate the evidence, at the same time 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. Unless the findings are perverse, illegal or improper, ordinarily this Court would not interfere with the same. 11. P.W.1 deposed that about one year after the marriage of his daughter with son-in-law, some differences arose between them and therefore, he took his daughter to his house and filed a petition for divorce in Subordinate Judge’s Court, Sathupalli. He came to know that his son-in-law gave a complaint to the police. Therefore, P.W.1 was called to the Police Station. At that time, the accused officer was working as Sub Inspector of Police, Sathupalli Police Station. He did not say that in that connection, the accused officer demanded Rs.2,000/-as bribe. As he was giving a complete go by to his earlier version, the learned Public Prosecutor sought permission of the trial Court to cross-examine the witness. Even after the cross-examination, nothing has been elicited to connect the accused officer with the crime except marking Ex.P1-F.I.R. and Ex.P2-statement of P.W.1 recorded by the Deputy Superintendent of Police under Section 161 (3) Cr.P.C. Exs.P1 and P2 cannot be read as substantive evidence. In view of the fact that P.W.1 resiled from Ex.P1, it cannot be used to corroborate his evidence. 12. P.W.2 is accompanying witness. He also did not support the case of the prosecution. 13. P.W.3 is the mediator for drafting pre-trap and post-trap proceedings. The evidence of P.W.3 would go to show that P.W.1 produced Rs.2,000/- consisting of hundred rupee denomination. His evidence coupled with the recitals in Ex.P4 would go to show that M.O.1-tainted currency notes was smeared with phenolphthalein powder and also numbers of the currency notes were noted. 14. P.W.7 is the Trap Laying Officer. He instructed P.W.1 to give M.O.1-tainted currency notes to the accused officer on demand made by him. On receipt of pre-arranged signal, P.Ws. 3 and 7 rushed to the Police Station. The accused officer produced M.O.1-tainted currency notes. When the right-hand fingers of the accused officer were subjected to Sodium Carbonate Solution Test, the solution turned into pink colour. There is no other reason to disbelieve the evidence of P.Ws. 3 and 7 who are the mediator and Trap Laying Officer with regard to drafting of Exs.P4 and P5 mediators report. From their evidence, it is clear that the tainted currency notes was seized from the possession of the accused officer. 15. Law is well settled that in the absence of proof of demand of money by a public servant, the offence under Section 13 (1) (d) of the Act is not made out. On this aspect, it is pertinent to refer to a decision reported in A.SUBAIR V STATE OF KERALA [1], wherein it was held thus: “The legal position is no more res integra that primary requisite of an offence under Section 13 (1) (d) of the Act is proof of a demand or request or a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13 (1) (d) cannot be held to be established.” 16. If the evidence of P.Ws. 3 and 7 coupled with recitals in Ex.P5 is to be accepted, it is established that the tainted currency notes was seized at the instance of the accused officer. Even the accused officer did not deny or dispute about receipt of M.O.1- tainted currency notes from P.W.1. But, his contention is that he received the said amount as a loan sent by an Advocate through P.W.1 for the purpose of incurring medical expenses for his ailing wife. As a matter of fact, P.W.1 also stated that he gave that amount towards loan as sent by an Advocate. From the evidence adduced on behalf of the prosecution, two views are reasonably possible. Therefore, the view, which is favourable to the accused officer should be adopted. Perhaps that is the reason why, the trial Court rightly acquitted the accused officer and there are no compelling or substantial reasons to interfere with the same. 17. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 24-03-2004, in C.C. No. 15 of 1994, on the file of the Principal Special Judge for SPE & ACB Cases, Hyderabad. --------------------- K.C.BHANU, J DATED: 10-11-2009 Hsd [1] (2009) 6 SCC 587