IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THE NINETEENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.35 of 2003 Between: P.V.A.Sastry, Mandal Revenue Officer, Talluru Mandal, Prakasam District …Appellant / Accused AND The State of A.P. rep by the Inspector of Police, A.C.B., Nellore Range, Ongole, through Spl. Public Prosecutor for ACB Cases, High Court of A.P. …Respondent The Court made the following: THE HON'BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.35 of 2003 JUDGMENT: 1. This Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’, for brevity) is directed against the judgment, dated 23.12.2002, in C.C.No.11 of 1999, on the file of the Court of the Special Judge for SPE & ACB Cases, Nellore, whereunder and whereby, the appellant was found guilty of the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’, for brevity) and sentenced to undergo Simple Imprisonment for a period of six months and to pay a fine of Rs.1,000/- in default to suffer Simple Imprisonment for a period of one month, under each count. 2. The brief facts, that are necessary for disposal of the prosecution case, may be stated as follows: The accused was working as Mandal Revenue Officer at Tallur Mandal, Prakasam District. P.W.s 1, 3 and 4 are residents of Tallur Village, residing at S.C. Colony. There was no electricity in the S.C. Colony. The residents, about 20 in number, made an application to the authorities of Electricity Board for electric connection in the year 1997. The concerned officers of the electrical department informed them that electricity will be given on concession as they belong to scheduled caste and advised them to get community certificate from the Revenue officials. P.W.1, along with 19 others submitted the application forms (Ex.P.4 to P.22) to P.W.2, who was working as Junior Assistant. P.W.2 made enquiries and forwarded the same to the Revenue Inspector (P.W.5) on 23.10.1997, put the signatures in all forms of caste certificates and sent the same to P.W.5. P.W.5 received the same on 24.10.1997, made enquiries about the identity of the applicants, found them to be correct and initialed on the applications and handed over the same to the Head Assistant in M.R.O. Office along with the applications. Two caste certificate proformas were also supplied to the M.R.O. by the applicants. P.W.5 initialed on each of the caste certificates. Ex.P.23 to 42 and Ex.P.20 are sets of the caste certificates. On 07.11.1997, P.W.2 also put his initials on the caste certificates before obtaining the signatures of the M.R.O. According to P.W.2, on 07.11.1997, P.W.1 came and requested for caste certificates. P.W.2 told that the applications and all the enclosures were forwarded to the Revenue Inspector. On the same day, at 02.30 P.M., P.W.1 and Thalari brought all the certificates from the Revenue Inspector. P.W.2 made entries in the concerned register about the receipt of the certificates. He made entries in the register, which is marked as Ex.P.43. According to the charge sheet, on 29.10.1997, when P.W.1 met A.O. for issuance of the caste certificate, A.O. is alleged to have demanded Rs.800/- at the rate of Rs.40/- for each certificate. P.W.1 is alleged to have expressed his inability and again met the A.O. on 06.11.1997. On that day, the accused officer reduced the bribe amount to Rs.600/- at the rate of Rs.30/- for each certificate. As the defacto-complainant was not willing to pay the amount, he alleged to have lodged a report with P.W.11, the D.S.P., A.C.B., Ongole, who registered a case in Cr.No.9/RCP-NPK/97. Ex.P.55 is the original FIR. P.W.10, the mediator was asked to come to R & B Guest House, Ongole on 07.11.1997 at about 12.30 P.M. P.W.11 introduced P.W.1 to P.W.10 and thereafter the amount of Rs.600/- brought by P.W.1 was handed over to P.W.11. After explaining the significance of Phenolphthalein test, the first mediators report Ex.P.52 was prepared. At about 02:45 P.M., the trap party left the guesthouse and reached Tallur by 04.15 P.M. The jeep was stopped at a distance of 50 yards from the office of the M.R.O. and P.W.1 was asked to pay the amount only on demand by A.O. P.W.1 went into the house of M.R.O. at 05:20 P.M. The constable relayed the pre- arranged signal. Then the entire trap party went into the house of the A.O. They found P.W.1 outside the house of the A.O. The D.S.P. found the A.O. sitting in the chair. P.W.11 got sodium carbonate solution prepared and got the right hand fingers of the A.O. dipped into the said solution. The solution turned into light pink colour. Similarly, the left hand fingers were also turned positive to the test. The 2nd mediators report was prepared, which was marked as Ex.P.54. It is said that the currency notes were recovered from the left side shirt pocket of the A.O. P.W.12 – Inspector took up further investigation after examining all the witnesses and also after getting the 164 Cr.P.C. statement of P.W.1 recorded, the successor of P.W.12 filed charged sheet. 3. The learned Special Judge for SPE & ACB Cases, Nellore, framed the following charges against the Accused Officer: FIRSTLY:- That you accused being the Mandal Revenue Officer, Talluru, Talluru Mandal, Prakasam District i.e. Public Servant, on 07.11.1997, at about 04.15 P.M., at Mandal Office Complex, Talluru at your residence, pursuant to your prior demand on 29.10.1997 and 06.11.1997 received and accepted Rs.600/- as illegal gratification or bribe from one Dhara Anjaiah (L.W.1) for issuing Caste Certificate to him and others as a motive or reward or doing an official act in the exercise of your official functions, favour or dis-favour, service or dis-service to any person and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance. SECONDLY: That you accused on 07.11.1997, being a public servant to wit Mandal Revenue Officer, Talluru, Talluru Mandalam, Prakasam District that in the course of some transaction and at the same time and place mentioned in charge No.1 supra, you being a public servant accepted illegal gratification of Rs.600/- and that amounts to obtaining of a pecuniary advantage by corrupt or illegal means and you thereby, committed an offence of Criminal mis-conduct punishable under Section 13(1)(d) read with Section 13(2) of P.C. Act, 1988 and within my cognizance. When the above charges were read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.W.s1 to 12 and got marked Exs.P.1 to P.56 besides case properties M.Os. 1 to 10. 5. After closure of the prosecution evidence, the accused 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, no evidence, either oral or documentary, was adduced. 6. After considering the evidence on record, the trial Court found the Accused Officer guilty and accordingly convicted and sentenced him as stated above. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused officer for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Act and whether judgment of the Trial Court is correct, legal and proper? 8. Learned senior counsel appearing for the appellant/accused contended that there is no evidence to show that the accused demanded and accepted the money from P.W.1, that the material witness is not available, that P.W.1 did not support the case of the prosecution about the demand and acceptance of bribe by the accused officer, that the evidence of P.W.11 – Trap Laying Officer cannot be accepted in demanding and acceptance of the bribe amount by the accused officer, that mere recovery of the tainted currency notes from the shirt pocket of the accused officer cannot be made basis to convict the accused officer, and hence he prays to set aside the convictions and sentences recorded against the accused officer. 9. On the other hand, Sri V.Ravi Kiran Rao, learned Standing counsel appearing for ACB cases, contended that though P.W.1 turned hostile, his evidence would clearly go to show that the tainted currency notes have been seized from the shirt pocket of the accused officer, that when both the hands of the accused officer were subjected to Sodium Carbonate Solution Test, the solution turned into pink colour, and therefore, it can be inferred that the accused officer received the amount from P.W.1, that the trial Court, after elaborate consideration of evidence on record, rightly found the accused officer guilty and there are no grounds to interfere with the same. 10. 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. 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. 11. P.Ws.1, 3 and 4 are the persons who submitted the applications for issuance of caste certificates. They gave a complete go by to their earlier version. Therefore, the statements recorded under Exs.P.3, P.45 and P.46 respectively cannot be used as evidence as such. 12. Simply because P.W.1 did not support the case of prosecution, it does not mean his evidence would efface from the record. Such part of statement of P.W.1 inspires confidence, that can be used to corroborate the evidence, if any, available on record. 13. In view of the fact that P.Ws.1, 3 and 4 turned hostile, there is absolutely no evidence to show that the accused officer demanded and accepted the bribe or illegal gratification from them. The only evidence remains on record is the evidence of P.W.s 10 and 11, who are the Mediators and the Trap Laying Officer, who categorically stated that after receipt of pre-arranged signal, they rushed there and prepared Sodium Carbonate Solution Test in two glass tumblers and when both hands of the accused officer were subjected to Sodium Carbonate Solution Test, the solution turned into pink colour. Similarly, when the inner lining of the shirt pocket was also subjected to the Sodium Carbonate Solution Test, it also gave positive result. There is no reason for disbelieving the evidence of P.Ws.10 and 11. Their evidence clearly shows that M.O.3 - tainted currency notes were seized from the possession of the accused officer only. Similarly, the seizure of tainted currency notes from the possession of accused officer by itself, does not lead to an irresistible conclusion that accused officer had demanded and accepted some amount for illegal gratification to show an official favour. 14. On this aspect, it is pertinent to refer to para 24 of the decision reported in V.Venkata Subbarao vs State represented by Inspector of Police, A.P.[1]. “ Submission of the learned counsel or the state that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under. “20. Presumption where public servant accepts gratification other than legal remuneration – (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) or sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration), or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.” 15. Similarly, in C.M.Girish Babu v CBI, Cochin, High Court of Kerala[2], it is held as follows: “In Suraj Mal v. State (Delhi Admn.) ((1979) 4 SCC 725 : 1980 SCC (Cri) 159) , 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 recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment or bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.” Therefore, from the above two decisions, it is clear that mere recovery of tainted currency notes from the possession of the accused officer does not lead to an irresistible conclusion that the accused officer accepted and received the money towards bribe or illegal gratification. Therefore, the trial Court has not appreciated the evidence in a right perspective. 16. On the other hand, P.W.1 has also admitted that he thrusted the money into the shirt pocket of the accused officer. In such circumstances, it can be said that the prosecution failed to establish its case beyond all reasonable doubt and hence, the judgment under challenge needs interference by this Court. 17. Accordingly, the Criminal Appeal is allowed, setting aside the conviction and sentence passed by the learned Special Judge for SPE & ACB Cases, Nellore, vide judgment, dated 23.12.2002, in C.C.No.11 of 1999 against the accused officer for the charges under Sections 7 and 13 (1) (d) read with 13(2) of the Act. The appellant/accused officer is found not guilty of the charges framed against him and accordingly, he is acquitted of the said charges. The bail bonds of the appellant/accused officer shall stand cancelled. The fine amount, if any, paid by the appellant/accused officer shall be refunded to him. _________________ JUSTICE K.C. BHANU November 19, 2009 BVV [1] AIR 2007 Supreme Court 489 [2] (2009) 2 Supreme Court Cases (Cri) 1