THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.511 OF 2004 Date: 21st April, 2011 Between: State: rep by Dy. Supdt. Of Police, A.C.B. Vizianagaram Range, Vizianagaram Appellant/Complainant A n d K. Suryanarayana and another Respondents THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.511 of 2004 JUDGMENT: This is an appeal against acquittal of A1 and A2 of the charges under Sections 7, 11 and 13(1)(d)/13(2) of the Prevention of Corruption Act (in short, the Act). At the relevant point of time, A1 was working as Divisional Forest Officer (Territorial), Vizianagaram and A2 was working as Forest Range Officer (Regular), Vizianagaram. Dr. P.V.V. Raja Rao, who is now no more, was Power of Attorney holder of P.Ws.1 to 3 who are owners of land in S.Nos.112 and 113 of Pathivada Village of Poosapatirega Mandal. Alleging that the Government had encroached part of the land in S.Nos.112 and 113, P.Ws. 1 to 3 made a hectic representations to the authorities for release of the land from encroachment of the forest department. The Principal Chief Conservator of Forests, Hyderabad, instructed A1 to release unauthorized occupation of the said lands. In pursuance of the said instructions, A1 had issued proceedings dated 14.02.1994 instructing A2 to release the said land from occupation. It is alleged that in 2nd week of February 1994 A1 demanded, five tolas of Gold and A2 demanded Rs.10,000/- from P.W.1 for doing the said official favour of implementing the orders of release of the encroached land. The said demands were stated to have been made by A1 and A2 respectively to Raja Rao. It is alleged that A1 also forced Raja Rao to give an undertaking that he would withdraw the complaints given against him to Lokayukta and Upa-Lokayukta. It is further alleged that on 08.03.1994, A1 and A2 repeated their demands for illegal gratification. Therefore, Raja Rao approached A.C.B. officials and gave Ex.P-24-Report, on the basis of which Ex.P-25-FIR was issued. P.W.14, the Deputy Superintendent of Police, A.C.B, Vizianagaram and P.W.13, the Deputy Superintendent of Police, Visakhapatnam, arranged the traps for A1 and A2 in the presence of mediators including P.Ws.4 and 5 respectively. Ex.P-6 is pre-trap proceedings. According to the prosecution, both the traps were successfully carried out against A1 and A2 and Exs.P-11 and P-15 are the post-trap proceedings relating to A1 and A2 respectively. Plea of A1 and A2 was one of not guilty. After trial, in which the prosecution examined P.Ws.1 to 14 and marked Exs.P-1 to P- 25 and M.Os.1 to 17, the Special Judge for A.C.B. Cases, Visakhapatnam, by Judgment dated 26.11.2003 in C.C.No.30 of 2000 (Old C.C.No.7 of 1995) found A1 and A2 not guilty of the charges and acquitted them. 2. In this appeal, the Special Public Prosecutor contended that Ex.P-24-Report which was submitted by Raja Rao in the presence of P.W.4 during pre-trap proceedings, is relevant piece of evidence to prove the demand of illegal gratification by A1 and A2 and that the fact that M.O.5-two gold pendants and M.O.10-tainted cash of Rs.10,000/- were recovered from the houses of A1 and A2 respectively, coupled with the presumption under Section 20 of the Act, proved that A1 and A2 demanded and accepted illegal gratification from Raja Rao. 3. Unfortunately, Dr.P.V.V.Raja Rao who is the defacto complainant in Ex.P-24 was no more by the date of trial in the lower Court. P.Ws.1 to 3 who are relations of Raja Rao and owners of the lands in S.No.112 and 113 part of which was under encroachment by the forest department, turned hostile to the prosecution during trial in the lower Court. In any event, it is not the prosecution case that either A1 or A2 made any demands for any illegal gratification from any P.Ws.1 to 3 much less accepted the same from any of them. There is no direct evidence of the defacto complainant namely Dr.P.V.V. Raja Rao before the court to prove the alleged demands said to have been made by A1 and A2. Ex.P-24 being First Information Report given by Raja Rao though proved by P.Ws.4 and 14, is not a substantive piece of evidence. It can be used either for corroboration or for contradiction of the contents therein as against the maker thereof. When the maker namely Dr. P.V.V. Raja Rao of Ex.P-24 is no more, Ex.P-24 loses its importance in law and is not worth the paper on which it was prepared. It is only a paper which moved the machinery of A.C.B. into action. It cannot be relied upon by the prosecution for any other purpose. 4. In V.VENKATA SUBBARAO V. STATE[1], the Supreme Court was categorical in holding that in the absence of proof of demand of bribe or illegal gratification, the presumption under Section 20 of the Act cannot be drawn. The Supreme Court observed: “Submission of the learned Counsel for 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.” 5. In BANARASI DASS v. STATE OF HARYANA[2], the Supreme Court, after surveying the case law on the subject, came to the conclusion that in the absence of proof of demand and acceptance of money for doing a favour in discharge of official duties, the offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947 which is in pari materia with Section 13(1)(d) of the Act cannot be attracted. The Supreme Court observed therein: “To constitute an offence under Section 161 IPC it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused. Similarly, in terms of Section 5(1)(d) of the Act, the demand and acceptance of money for doing a favour in discharge of his official duties is sine qua non to the conviction of the accused.” 6. When there is no proof of demand by A1 or A2 of any bribe or illegal gratification from the defacto complainant, bottom of the prosecution case is knocked off. Without proof of demand and acceptance, the prosecution will not be able to succeed to prove any of the charges leveled against A1 or A2. 7. The lower Court while acquitting A1 and A2 gave several reasons for finding them not guilty. In this appeal against acquittal, this Court has to apply appropriate tests as laid down in KALYAN SINGH v. STATE OF MAHARASHTRA[3] of the Supreme Court to judge whether reasoning of the lower Court is perverse or manifestly unjust or palpably unreasonable. In Kalyan Singh (3-supra), the Supreme Court observed: “The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned Trial Judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate Court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on records by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial Court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible.” 8. In the first instance, after pre-trap proceedings, Raja Rao entered into the camp office / residence of A1 on the date of trap on 12.03.1994. But A1 was absent in his residence then. Therefore, after five or ten minutes, Raja Rao returned to the trap party. Nobody accompanied Raja Rao into the house of A1 during that morning. Subsequently, after waiting, second attempt was made by Raja Rao by entering into the residence of A1 during the evening, when A1 was available. After Raja Rao came out of A1’s residence and gave pre-arranged signal to the raid party, P.W.14, P.W.4 and others entered into A1’s residence and seized M.O.5 consisting of two gold pendants which were taken out by A1 from his table drawer in his drawing room/office room. It is the contention of A1 that M.O.5 was planted in his house in his absence and that he was not aware of its availability in the drawer of his table. The lower Court found favour with the said version of A1 on the ground that after Raja Rao came back from A1’s residence in the morning due to non-availability of A1 in the house, the raid party and more particularly P.W.14 did not check pockets of Raja Rao to find out whether M.O.5 gold pendants was still available with him, before entering into A1’s house in the evening. P.W.4 and P.W.14 admitted the said fact of non- checking of and non-verifying from Raja Rao about availability of M.O.5 gold pendants after first visit and before second visit of Raja Rao into A1’s residence. This is a strong circumstance which goes to the root of the case and which probabilises the version of A1 to the effect that M.O.5 was planted in his table drawer during his absence. This reasoning adopted by the lower Court for finding A1 not guilty of the charges, is not perverse nor unjust nor unreasonable. Even if the second view in favour of the prosecution is possible from the fact of both hand rinses of A1 turning into pink in Sodium Carbonate solution, possibility of the second view cannot dislodge the probable reasoning of the lower Court in finding A1 not guilty of the charges. 9. Insofar as A2 is concerned, it is the version of A2 that after talking with him and giving Ex.P-17-Visiting Card and shaking hands with him, Raja Rao left his house by keeping M.O.10-tainted currency notes of Rs.10,000/- on the table in the Verandah of the house. It is his further version that his father-in-law Suryanarayana found M.O.10 on the table and handed over the same to the accused who in turn handed over the same to his son Udaya Sankar, who in turn handed over the same to A2’s wife Chudamani who kept the amount in kitchen. After the raid party rushed into A2’s residence, on the instructions of A2, his wife Chudamani brought M.O.10 from the kitchen and handed over the same to P.W.13 who seized the same. During post-trap proceedings conducted in the house of A2, P.W.13 examined not only Raja Rao and A2 but also Chudamani, Udaya Sankar and Suryanarayana. Of course, contents of the post-trap proceedings relating to the statements recorded from these persons other than A2 are not legal pieces of evidence as they are statements recorded under Sections 162 Cr.P.C. Since none of them was examined in Court, no reliance can be placed on any of the said statements either by the prosecution or by the accused. But the fact remains that Raja Rao handed over Ex.P-17- Visiting Card to A2 and P.W.13 seized the same from A2 under the post-trap proceedings. When Raja Rao handed over Ex.P-17-Visiting Card and is stated to have shook hands with A2, there is every possibility of Raja Rao transferring remnants of Phenolphthalein powder into the hands of A2. In that view of the matter, the fact of A2’s hand rinses turning pink in Sodium Carbonate solution may not assume much significance in this case. Apart from the above two glaring deficiencies in the prosecution case, the lower Court pointed out several other minute circumstances which forced the lower Court to disbelieve the prosecution case and to accept the version put forward by A1 and A2. 10. From scrutiny of the entire material on record and judgment of lower Court, I am of the opinion that the lower Court came to a right conclusion in favour of A1 and A2 giving benefit of doubt in their favour, having regard to the unreliable evidence of the prosecution. In the absence of proof of demand and proof of acceptance of illegal gratification, the prosecution cannot expect any conviction of A1 or A2 in this appeal. I agree with the reasoning and conclusion arrived at by the lower Court. 11. Hence, the appeal is dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J 21st April, 2011 KSM [1] 2007 (1) ALD (Crl.) 209 (SC) [2] (2O1O) 2 Supreme Court Cases (Cri) 864 [3] 2006 (12) SCALE 577