IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY SIXTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.264 OF 2003 Between: The State of A.P., Rep. by A.C.B., Inspector of Police, City Range, Hyderabad. ..... Appellant/Complainant AND P. Ashok ..... Respondent/Accused Officer The Court made the following: JUDGMENT: This Criminal Appeal, under Section 378 (1) & (3) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed by the State represented by the Inspector of Police, Anti- Corruption Bureau (for short, “A.C.B.”), City Range, Hyderabad, against the judgment, dated 04.09.2002, in C.C.No.25 of 1998, on the file of the learned Principal Special Judge for SPE and ACB Cases, Hyderabad, whereunder and whereby the respondent/sole accused was found not guilty of the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short, “the Act”), and accordingly, he was acquitted. 2. The brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: P.W.1 purchased a house plot admeasuring to an extent of 121.22 square meters for Rs.60,000/- on 09.10.1990 and constructed a house bearing No.13-6-431/D/88/3, in Survey Nos.227 and 219 of Gudimalkapur Village, Golconda Mandal, during the year 1991-92. P.W.1 also constructed a compound wall around his house by encroaching the adjacent Government land admeasuring to an extent of 105.60 square meters. Having noticed this, the Revenue Department authorities inspected his house in December, 1993, and threatened to demolish the said compound wall constructed on the encroached land. Thereupon, P.W.1 requested the officials to regularize the encroachment made by him and as per the rate fixed by the District Collector, P.W.1 paid Rs.2,51,250/- through cheque, dated 15.10.1996. But the District Collector returned the cheque to the Mandal Revenue Officer, Golconda, to obtain a demand draft for that amount from P.W.1. The Accused Officer, who was working as a Mandal Revenue Inspector, Asifnagar Mandal, who has got jurisdiction over Gudimalkapur area, visited the house of P.W.1 in December, 1996, and threatened to demolish the compound wall existing on the encroached land and demanded Rs.8,000/- as illegal gratification other than legal remuneration for not demolishing the compound wall and not to harass him. When P.W.1 expressed his inability to pay such a huge amount, the Accused Officer reduced the amount to Rs.5,000/- and asked him to pay that amount by 22.01.1997. Since P.W.1 was not willing to pay the bribe amount, he lodged Ex.P4-complaint, dated 21.01.1997, to P.W.10-the Deputy Superintendent of Police, A.C.B., City Range, Hyderabad. P.W.10, who is the Trap Laying Officer, after making all necessary arrangements, laid a successful trap against the Accused Officer on 22.01.1997 at about 7.00 p.m. in the office of P.W.1 at R.T.C. Cross Roads. Both the hand fingers of the Accused Officer were subjected to Sodium Carbonate Solution Test, which gave positive result. The M.O.1-tainted currency notes were recovered by P.W.10 from the left side shirt pocket of the Accused Officer. After obtaining Ex.P17-Sanction Order, dated 17.04.1998, from the competent authority, P.W.11 filed the charge sheet against the Accused Officer for the offences punishable under Sections 7 and 13 (1) (d) read with 13 (2) of the Act. 3. The learned Principal Judge for SPE & A.C.B. Cases, Hyderabad, framed the following charges against the Accused Officer: “FIRSTLY That you being a public servant employed as Mandal Revenue Inspector, in the office of Mandal Revenue Officer, Asifnagar, Hyderabad, on or about 22nd day of January, 1997 at about 7.00 p.m. in the office room of Mallesh Rao, Advocate in his residence at R.T.C. Cross roads, Hyderabad, as per your earlier demand, demanded and accepted a sum of Rs.5,000/- (Rupees five thousand only) from C.Mallesh Rao S/o. Narasimha, Advocate R/o. H.No.1-1-17/8, R.T.C. Cross roads, Hyderabad as gratification other than legal remuneration as a motive or reward for showing official favour i.e. in not demolishing the structures on the encroached land and not to harass him and thereby you committed an offence punishable Under Sec.7 of the Prevention of Corruption Act, 1988 and within my cognizance. SECONDLY AND LASTLY That you being a public servant employed as Mandal Revenue Inspector in the office of Mandal Revenue Officer, Asifnagar, Hyderabad, on or about 22nd day of January 1997 at about 7.00 p.m. in the office room of C.Mallesh Rao, Advocate, in his residence at R.T.C. cross-roads, Hyderabad, by corrupt or illegal means or otherwise abusing your position as such public servant obtained for yourself pecuniary advantage to an extent of Rs. 5,000/- (rupees five thousand only) from C.Mallesh Rao S/o. Narasimha, Advocate, R/o. H.No.1-1-17/8 R.T.C. Cross roads, Hyderabad for showing official favour for not demolishing the structures on the encroached land and not to harass him and thereby you committed an offence specified U/S. 13 (1) (d) of the Prevention of Corruption Act, 1988, punishable Under Sec. 13 (2) of that Act and within my cognizance.” When the above charges were read over and explained to the Accused Officer, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 11 and got marked Exs.P1 to P24, besides case properties 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, no oral evidence was adduced except marking Exs.D1 to D3. 6. The trial Court, upon considering the evidence on record, has not placed any implicit reliance on the evidence of P.W.1 alone with regard to the demand and acceptance of the bribe amount and came to the conclusion that mere recovery of M.O.1- tainted currency notes from the possession of the Accused Officer by itself is not an evidence, and found the Accused Officer not guilty of the offences punishable under Sections 7 & 13 (1) (d) (ii) read with 13 (2) of the Act and accordingly acquitted him. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case against the Accused Officer beyond all reasonable doubt for the offences punishable under Sections 7 and 13 (1) (d) (ii) read with 13 (2) of the Act and whether the judgment of the Trial Court is correct, legal and proper? 8. The learned counsel, Sri V. Ravi Kiran Rao, learned Standing Counsel appearing for A.C.B., contended that there is absolutely no reason for P.W.1 to foist a false case of this nature against the Accused Officer; that the Accused Officer was putting pressure on P.W.1 to give the demand draft so that the land which was occupied by P.W.1 would be regularized; that on 20.01.1997, when the Accused Officer met P.W.1, he demanded Rs.8,000/- towards bribe for doing official favour to him for not demolishing the compound wall and not to harass him; that when P.W.1 expressed his inability, the Accused Officer reduced the amount to Rs.5,000/-; that not willing to pay the bribe amount, P.W.1 lodged Ex.P4-complaint with P.W.10, who is the Trap Laying Officer, and the purpose of demanding the bribe by the Accused Officer was specifically mentioned in Ex.P4; that after receipt of pre-arranged signal, P.W.10, along with the Mediator, went to the office room of the Accused Officer and seized M.O.1-tainted currency notes from the left side shirt pocket of the Accused Officer; that the Sodium Carbonate Solution Test, when conducted on fingers of both hands of the Accused Officer, gave positive result, and therefore, he prays to set aside the order of acquittal. 9. On the other hand, the learned counsel appearing for the respondent herein contended that except the solitary testimony of P.W.1, there is no other evidence; that P.W.1 was under great pressure with regard to payment of cash to a tune of Rs.5,00,000/- for the purpose of regularization of occupied land; that P.W.1 was not having so much of amount; that so as to gain time, P.W.1 falsely implicated the Accused Officer; that there was no official favour to be shown to P.W.1 by the Accused Officer; that the Accused Officer is not a competent person to demolish the structures if any; that as P.W.1 already obtained interim direction from this Court in Writ Petition filed by him directing the Revenue officials not to interfere with the possession and enjoyment of the right of P.W.1 in the building in question, a prudent Revenue Official would not dare to demolish the building, and so, the question of demanding money by the Accused Officer for the demolition of the building does not arise; that mere recovery of M.O.1-tainted currency notes by itself is not a ground to infer that the Accused Officer committed offences punishable under Section 13 (1) (d) read with 13 (2) of the Act; that the trial Court, after elaborate consideration of evidence on record, rightly found the Accused Officer not guilty and that order does not call for any interference by this Court, and hence, he prays to dismiss the Criminal Appeal. 10. There cannot be any dispute that in dealing with the Criminal Appeal against the order of acquittal, the Appellate Court has got full power to reappreciate the evidence available on record, but it will be slow in interfering with the findings in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved by the prosecution beyond all reasonable doubt, and that presumption of innocence is further strengthened by an order of acquittal. Unless there are compelling or substantial reasons viz., the findings are perverse, or not based upon any evidence, or admissible evidence has not been taken into consideration, or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. In short, there must be compelling or substantial reasons while interfering with the order of acquittal. 11. 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. 12. 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. It is not in dispute that P.W.1 is a practicing advocate. He purchased a house plot bearing No.13-6-431/D/88/3, in Survey Nos.227 and 219, situated at Gudimalkapur Village, Asifnagar Mandal, previously known as Golconda Mandal, Hyderabad, admeasuring an extent of 121.22 square meters, for a consideration of Rs.60,000/- under Ex.A2-Sale Deed, dated 16.04.2001. P.W.1 also constructed a compound wall around the house by encroaching the adjacent Government land to an extent of 105.60 square meters in the year 1993. The Revenue officials, having noticed the same, visited the site during December, 1993, to demolish the said compound wall constructed on the encroached land. It is not in dispute that P.W.1 gave an application to the District Collector for fixing the market value for regularizing the encroached land. Thereupon, the Revenue officials fixed the value of the encroached land at Rs.2,51,250/- and directed P.W.1 to pay that amount. Thereupon, the District Collector issued Ex.P6-Show Cause Notice, dated 16.04.2001, calling upon P.W.1 to pay that amount on or before 15.06.1996, failing which the land will be put to auction along with structures thereon. Then, P.W.1 made a request, which is marked as Ex.P7- Application, dated 15.06.1996, to the District Collector to extend the time upto 10.08.1996. Then, P.W.1 issued a cheque, dated 15.10.1996, for Rs.2,51,250/-. But the District Collector returned the cheque to the Mandal Revenue Officer, Golconda, to obtain demand draft from P.W.1. 14. For about one month prior to the trap i.e., from 27.12.1996, the Accused Officer was working as a Mandal Revenue Inspector in Asifnagar. The Accused Officer was entrusted with the responsibility of collecting the demand draft from P.W.1. It is also not in dispute that P.W.1 filed a Writ Petition before this Court against the revenue officials for necessary directions for demarcation of the land and also for consideration of his appeal and also for a direction not to interfere with his possession on the encroached land along with the house structure. This Court granted interim order directing the Revenue officials not to interfere with the possession of P.W.1 on the encroached land along with the house structure. In the said Writ Petition, P.W.1 has impleaded the Secretary, Revenue Department, the District Collector, Hyderabad, and the Mandal Revenue Officer, Golconda, and others as respondents. It is alleged that some of the revenue officials were demanding bribe not to demolish the structure one month prior to giving of Ex.P4-complaint. According to the evidence of P.W.1, the Accused Officer demanded Rs.8,000/- for not demolishing the compound wall for the first time on 20.01.1997. 15. In view of the interim direction given by this Court, ordinarily the revenue officials would not make any effort or try to demolish the building or interfere with the peaceful possession of the building of P.W.1 in any manner whatsoever. It is not the case of P.W.1 that even after the interim direction given by this Court, the revenue officials tried to demolish the compound wall. Admittedly, an appeal is pending before the District Collector to reduce the amount as determined for regularization of the land which P.W.1 occupied. 16. It is not in dispute that M.O.1-tainted currency notes were seized from the possession of the Accused Officer. The numbers as noted in Ex.P9-Mediator’s Report were tallying with the numbers that were seized from the possession of the Accused Officer. When the Sodium Carbonate Solution Test was conducted on fingers of both hands of the Accused Officer, the solution turned into pink colour. Even the Accused Officer is not denying about the receipt of the money but he says that P.W.1 thrust the amount into the shirt pocket of the Accused Officer so as to implicate him in a false case of this nature. 17. As seen from the evidence on this record, except the solitary testimony of P.W.1, there is no other evidence with regard to the demand and acceptance. When a case rests upon the solitary witness, it must be unimpeachable, true, trustworthy and reliable. When the evidence of P.W.1 is put in the category of wholly reliable, then there is no legal bar for basing a conviction even without any corroboration. 18. On this aspect, it is pertinent to refer to a decision reported in Vadivelu Thever v. State of Madras[1], wherein it is held thus: “Generally speaking oral testimony in this context may be classified into these categories, namely: (i) Wholly reliable (ii) Wholly unreliable (iii) Neither wholly reliable nor wholly unreliable In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach on suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” 19. The evidence of P.W.1 would go to show that he occupied the Government land to an extent of 105.60 square meters for which the Government regularized his occupation by ordering to pay Rs.2,010/- per square yard. Though, according to P.W.1, he was a poor man, he had to pay that amount for regularizing the encroached land. When the revenue officials threatened to demolish the compound wall if he failed to pay that amount, P.W.1 issued a cheque, dated 15.10.1998, for an amount of Rs.2,51,250/-, for which the revenue officials returned the cheque with a direction to obtain a demand draft. That job was entrusted to the Accused Officer. There is no harassment to P.W.1 with regard to demand for issuing of demand draft. Only on 20.01.1997, the Accused Officer went to the house of P.W.1 and demanded him to pay that amount for not demolishing the building, it is not his case that the Accused Officer was harassing to give demand draft. It is also in the evidence of P.W.1 that even after obtaining interim order from this Court, the revenue officials were harassing him to demolish the building and they were demanding some amount. 20. In Exs.P4 and P7, P.W.1 has not mentioned his occupation as an advocate. P.W.1’s place of residence in Exs.P4, P5 and P7 is shown as H.No.13-6-431/D/88/2, S.N. Nagar, Post Humayun Nagar, Hyderabad, but not as H.No.1-1-17/8, R.T.C. Cross Roads, Hyderabad. P.W.1 went to the extent of saying that by the date of filing of the Writ Petition, the Accused Officer was working as a Mandal Revenue Inspector of Gudimalkapur jurisdiction area. P.W.1 filed the Writ Petition on 10.12.1996, but admittedly, the Accused Officer, who was posted as a Mandal Revenue Inspector, Asifnagar, joined the duty on 27.12.1996. In the sworn affidavit of P.W.1 filed in support of the Writ Petition No.3645 of 1996, his occupation was shown as business though he was practicing advocate since 1982 onwards. No explanation is given as to why the place of residence of P.W.1 is shown as Gudimalkapur instead of R.T.C. Cross Roads. Even before the Accused Officer joined as a Mandal Revenue Inspector on 27.12.1996, P.W.1 attributed the allegation in Ex.P24, which is the First Information Report, that the Accused Officer demanded money. Therefore, in view of these circumstances, the trial Court has not placed any implicit reliance on the evidence of P.W.1. In view of several infirmities he cannot be put in the category of wholly reliable. At best, he can be put in the category of neither wholly reliable nor wholly unreliable. In such a case, the evidence of P.W.1 requires corroboration. There is absolutely no other evidence to corroborate his evidence with regard to the demand of bribe from him by the Accused Officer. As a matter of fact, there is no official favour to be shown to P.W.1 by the Accused Officer. The Accused Officer was only entrusted to collect the amount from P.W.1. Even if P.W.1 would not give the demand draft, nothing would happen to him at the hands of the Accused Officer. Any decision to be taken, with regard to the demolition or with regard to cancellation of regularization, lies entirely with the District Collector. It appears that the present complaint is lodged only to gain time. 21. No doubt, there is no motive or grouse for P.W.1 to foist a false case of this nature against the Accused Officer. But no official favour to be shown by the Accused Officer in favour of P.W.1 was pending. Therefore, the trial Court rightly has not placed any reliance on the solitary testimony of P.W.1. 22. No doubt, the recovery of M.O.1-tainted currency notes from the possession of the Accused Officer is proved in view of the evidence of P.W.2, who is an independent Mediator, as well as P.W.10-Trap Laying Officer. This circumstance alone is not sufficient to infer that the Accused Officer committed the offences, in view of the decision reported in C.M. Girish Babu v. CBI, Cochin, High Court of Kerela[2], wherein it is held thus: “In Suraj Mal v. State (Delhi Admn.)[3], this Court took the view that (at SCC p.727, para 2) 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 recover 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.” 23. Therefore, none of the findings of the trial Court is shown to be perverse or contrary to law. The findings are based upon proper appreciation of evidence on record. Therefore, the order of acquittal needs no interference. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 24. In the result, the Criminal Appeal is dismissed confirming the judgment, dated 04.09.2002, in C.C.No.25 of 1998, on the file of the learned Principal Special Judge for SPE and ACB Cases, Hyderabad. _______________ (K.C. BHANU, J) Date: 26th November, 2009 KL [1] 1957 SC 614 [2] (2009) 2 Supreme Court Cases (Criminal) 1 [3] (1974) 4 SCC 725 : 1980 SCC (Cri) 159