HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.145 of 2009 JUDGMENT: This Criminal Appeal is filed by the appellant-accused officer against the judgment dated 04.01.2009 passed by the Addl. Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, in C.C.No.35 of 2004, convicting him under Section 248(2) Cr.P.C. for the offences punishable under Sections 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short “the Act”) and sentencing him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- in default to undergo simple imprisonment for a period of one month under each count separately. 2. Briefly, the case of the prosecution is as follows:- i) The accused officer worked as the Sanitary Inspector of Gaddiannaram Municipality. P.W.1 and his brother are owners of house bearing No.7-7 and 7-7/1 at Madhurapuri colony, Dilsukhnagar, Hyderabad. After obtaining permission, the old house was demolished and a new building was constructed during the year 2003. Having constructed the building, they also connected drainage to the existing drainage lines by laying a new pipe line. While so, on 10.09.2003, the accused officer inspected and closed the drain and, when enquired, the accused officer informed that since no permission was obtained, the drain was closed and he also informed that P.W.1 and his brother have to obtain fresh permission which would involve an expenditure of Rs.25,000/-. ii) When P.W.1 questioned, the accused officer informed that Rs.6,000/- has to be paid as fee and balance of Rs.19,000/- towards expenses, upon which, P.W.1 expressed his inability. However, the accused officer insisted that at least Rs.9,000/- has to be paid apart from Rs.6,000/- totaling to Rs.15,000/- and it is alleged that Rs.9,000/- as demanded by the accused is towards bribe. iii) On 19.09.2003 P.W.1 met the accused officer and informed that he got only Rs.4,000/- and requested him to accept Rs.4,000/-, apart from fee of Rs.6,000/-. Then, the accused officer accepted Rs.4,000/- and obtained application from P.W.1 in the name of his brother by name Sri P. Jaganmohan and directed P.W.1 to bring the remaining amount of Rs.5,000/- and obtain permission after paying Rs.6,000/-. The accused officer made it clear that only after payment of Rs.5,000/-, permission papers would be given. iv) As P.W.1 was unwilling to pay the bribe amount, he lodged Ex.P.1 complaint before P.W.9, D.S.P., A.C.B., Hyderabad Range, against the accused officer. Having registered the same as Crime No.22/ACB-HR/2003 on 22.09.2003, P.W.9 laid a trap on the accused officer on the same day which proved successful and the tainted currency notes were recovered and the sodium carbonate test conducted on both hands of the accused officer yielded positive result. P.W.10, Inspector of Police, A.C.B., took up further investigation and laid charge sheet against the accused officer under Sections 7, 13(i)(d) r/w Section 13(2) of the Act. v) On appearance of the accused officer in the Court, the learned Special Judge framed charges under Sections 7, 13(i)(d) r/w Section 13(2) of the Act, for which the accused officer pleaded not guilty and claimed to be tried. 3. In support of its case, the prosecution examined P.Ws.1 to 10 and got marked Exs.P.1 to P.15 and M.Os.1 to 10. On behalf of defence, no oral evidence was adduced, but Exs.D.1 and D.2 were marked through P.W.7. 4. After evaluating both oral and documentary evidence, the learned Special Judge convicted and sentenced the accused officer as stated supra. Aggrieved thereby, the accused officer filed this Criminal Appeal. 5. Learned Senior Counsel for the appellant submitted the following points for consideration: i) The person who set the law in motion turned hostile. ii) The person who accompanied the complainant turned hostile. The above said witnesses not only turned hostile but also introduced the theory that there is no demand of bribe by the appellant herein. iii) Mere recovery of amount is not a ground to convict the appellant. iv) The prosecution also miserably failed in establishing the demand of bribe by the appellant. v) The prosecution has not differentiated the connection charges and the cutting charges for which the appellant herein is empowered to collect. 6. On the other hand, learned Addl. Public Prosecutor submitted that turning of P.Ws.1 and 2 hostile is not a ground to acquit the appellant and the learned trial Judge has rightly assessed the other evidence available on record in proper perspective and accordingly convicted the appellant as stated supra. 7. This Court perused the entire record and also the documents and the evidence adduced by the prosecution. 8. Out of ten witnesses examined by the prosecution, P.W.1 is the person who set the law in motion by way of lodging Ex.P.1 complaint in which he has stated as to the demand made by the accused officer. However, P.W.1 complainant and P.W.2 scribe of Ex.P.1 complaint were declared hostile to the case of the prosecution. This Court is of the view that merely because the complainant who set the law in motion turned hostile is not a ground to acquit the appellant, when the other evidence adduced by the prosecution supports its case. Further, in the present case, the prosecution failed to establish the fact that whether the powers of the appellant are confined to only connection charges or cutting charges, when it is the specific case of the appellant that he has received Rs.6,000/- towards connection charges and Rs.5,000/- towards cutting charges and he also informed to P.W.1 that after estimation only he can ascertain the exact amount of cutting charges. 9. Further, the case of the prosecution is that there is no evidence to show that there is necessity of collecting cutting charges. But, Exs.D.1 and D.2 produced by the appellant clearly indicates that the appellant is also empowered to collect cutting charges. It is also the case of the prosecution that while launching pre trap, a sum of Rs.6,000/- and a sum of Rs.5,000/- was given to P.W.1, whereas it is not very clear whether the said amounts are given separately or at a time. Once the prosecution fails that the amount of Rs.5,000/- is given separately, and an amount of Rs.6,000/- which is not tainted with phenolphthalein powder is given separately, there is also a possibility of phenolphthalein powder being in contact with Rs.6,000/- which is meant for connection charges. 10. It is also the contention of the learned Senior Counsel that mere recovery of tainted amount by itself is not enough in absence of evidence to prove payment of bribe or to show that accused voluntarily accepted the money knowing it to be bribe and the burden of proof on the appellant under Section 20 of the Act is not the same as the burden placed on prosecution to prove the case beyond reasonable doubt. In this connection, he relied on a decision in C.M. Girish Babu Vs. CBI, Cochin, High Court of Kerala[1] wherein the Apex Court categorically held as follows: “A. Prevention of Corruption Act, 1988 – S.7 – Mere recovery of tainted money from accused when substantive evidence not reliable – If enough to ground conviction under S. 7 – Defence by appellant-accused that he had believed all along that amount in question was for repayment of loan taken from his assistant – Tenability – Reiterated, mere recovery of tainted money by itself is not enough, in absence of evidence to prove payment of bribe or to show that accused voluntarily accepted the money knowing it to be bribe. B. Prevention of Corruption Act, 1988 – S.No. – Presumption under – Burden of proof to rebut – Extent of – Mode of rebutting the presumption – Held, accused can rebut charge either through cross-examination of prosecution witnesses or by adducing reliable evidence – Further held, burden of proof on accused under S.20 is not the same as the burden placed on prosecution to prove case beyond reasonable doubt.” 11. From the above, it is clear that mere recovery of tainted money is not a substantive evidence, but it should be corroborated by possible and acceptable evidence by the prosecution and further it is the duty of the prosecution to prove its case. The evidence adduced by the appellant is different from the evidence adduced by the prosecution. The appellant can rebut the charges leveled against him by cross- examining the prosecution witnesses or by adducing reliable evidence. The burden of proof on accused under Section 20 is not the same as the burden placed on prosecution to prove case beyond reasonable doubt. In the present case, the prosecution miserably failed that the appellant officer demanded any such amount more particularly as bribe in order to give connection. When the appellant creates a doubt about the case of the prosecution more particularly when it is a reasonable doubt raised by the appellant that benefit should be given to the appellant. 12. For the aforesaid reasons, this Court is of the view that the judgment of the trial Court convicting the accused officer for the offences with which he was charged cannot be sustained in law. 13. Accordingly, the Criminal Appeal is allowed. The conviction and sentence recorded against the appellant-accused officer by the learned Addl. Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, in C.C.No.35 of 2004, by judgment dated 04.01.2009, are hereby set aside and, consequently, the appellant-accused officer is acquitted of the charges leveled against him. The fine amount, if any, paid shall be refunded. __________________ RAJA ELANGO, J 24th February, 2011 CBS HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.145 OF 2009 (Allowed) 24th February, 2011 CBS HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO.145 OF 2009 Dated: 24.02.2011 BETWEEN: Peddabali Ramanjul Reddy … Appellant/ Accused AND The State through Inspector of Police, rep. by the Special Public Prosecutor for ACB, High Court, Hyderabad. …Respondent THIS COURT MADE THE FOLLOWING: 8. When the complainant P.W.1 turned hostile, it is the duty of this Court to ascertain as to whether there is any evidence to substantiate the case of the prosecution available on record. To prove the case of demand of bribe, there should be positive evidence and a reason for making such demand should also be in existence. The record discloses that the Executive Engineer, Karimnagar Division of the Corporation has addressed a letter to the Managing Director of the said Corporation informing that the Singareni Collieries released an amount of Rs.27 lakh towards the work done by the contractors and seeking permission to release the payments to the contractors since there is an inordinate delay in making payments, vide letter dated 07.01.1997. The Managing Director of the Corporation, in turn, gave permission to incur expenditure to a tune of Rs.11 lakh towards payment of the bills to the contractors, vide letter dated 28.01.1997. In compliance thereof, the Executive Engineer has drawn the amount payable to P.W.1 through a cheque dated 29.01.1997 and purchased D.Ds on 30.1.1997. From the above, it is apparent that immediately after obtaining permission, the Executive Engineer drawn the cheque and purchased D.Ds on 30.1.1997 and there is no delay on his part in making the payments. Admittedly, in the present case lodging of Ex.P.1 complaint by P.W.1 and drawing of amount payable to P.W.1 by the Executive Engineer through cheque were done on one and the same date i.e. 29.01.1997 and the complaint was registered on 31.01.1997 i.e. just a day after the Executive Engineer purchased D.Ds. 9. The positive evidence of phenolphthalein test is also not acceptable, since it is the evidence of P.W.1 that he shook his hands with the accused officer and the money was recovered near the place where he sat in front of the accused officer. Exs.P.2 and P.3 demand drafts were not brought at the instance of the accused officer to his office room, in view of the evidence adduced by P.W.3 that on the instructions of P.W.1 he brought the D.Ds and the records to the office room of the accused officer. 10. Further, it is also evident from the evidence adduced by the prosecution that the accused officer is not a competent person either to prepare bills or to encash money to hand over the same to P.W.1 and further the evidence of the witnesses clearly indicates that the accused being an officer forwarded the entire papers like measurement books and other relevant documents for the purpose of preparation of bills and for disbursement of amount to P.W.1. The said facts improbablise the case of the prosecution that demand was made by the accused officer in the present case. When the said demand is proved beyond reasonable doubt and the money was recovered, presumption under Section 20 would apply to the case on hand. In the present case, acceptance of money is also not proved beyond reasonable doubt, in view of the evidence adduced by P.Ws.1 and 3. Therefore, this Court is of the view that placing reliance on the evidence of mediator P.W.2, who supported the case of the prosecution, it is unsafe to convict the accused officer. 11. In Banarsi Das Vs. State of Haryana[2], the Apex Court held that mere recovery of money from the accused by itself is not enough, in absence of substantive evidence for demand and acceptance and that when the prosecution is not able to establish charge of demand and acceptance of illegal gratification by the accused, the accused is entitled to some benefit on technical ground of complainant turning hostile and thereby he is entitled for acquittal. The decision of the Apex Court in the said case squarely applies to the case on hand, since the complainant P.W.1 turned hostile and there is no other evidence except the evidence of P.W.3 on the aspect of demand and acceptance of illegal gratification. [1] (2009) 2 SCC (Cri) [2] (2010) 4 Supreme Court Cases 450