HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2171 of 2004 Date:11.02.2011 Between: M. Yellaiah ….Appellant And: State, rep. by PP. .…. Respondent. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2171 of 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Principal Special Judge for SPE & ACB Cases- cum-IV Additional Chief Judge, City Civil Court, Hyderabad on 30.09.2004. The appellant herein was prosecuted for the offence under Sections 7, 11 & 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (for short, the Act) alleging that the accused was working as Mandal Revenue Inspector in the office of the Mandal Revenue Officer, Ramachandrapuram, Medak District and is a public servant as defined under Section 2 (c ) of the Act. The complainant J. Nagalingam resident of Ramachandrapuram Mandal, Medak District. After the death of his father he submitted a petition before the R.D.O., Sangareddy on 17.11.1992 requesting for mutation of that land in his name and accordingly the Revenue Divisional Officer, Sangareddy issued orders for the transfer of that land in the name of the complainant vide Proceedings No.B4/Inam/154/89, dated 17.11.1992 and issued patta certificate. The complainant submitted a petition in the office of Mandal Revenue Officer, Ramachandrapuram in February, 1993 requesting to enter his name in ROR and for issuing copies of pahani for the year 1991-92. Thereafter he approached the accused and then the accused informed the complainant that he has to go through the R.O.R record from 1992 and demanded the complainant to pay bribe of Rs.500/-. On 12.3.1993 when the complainant approached the accused to get the pahani copy for 9 guntas of land the accused reiterated the complainant to pay bribe of Rs.500/- and when the complainant showed his inability the accused officer reduced it to Rs.200/- and insisted him to pay the demanded bribe amount to get the copy of pahani. Thereafter, the complainant lodged a complaint with the Inspector of A.C.B on 18.3.1993 which was forwarded to the DSP., ACB, Nizamabad on 19.3.1993. Thereafter registering a case against the accused a trap was laid against the accused by the Inspector of Police, A.C.B, Sangareddy and the said trap was became successful. After obtaining sanction from the competent authority, the accused was prosecuted for the offence under Sections 7,11 & 13(2) read with Section 13(1)(d) of the Act. The learned Special Judge has framed the charge under Sections 7,11 & 13(2) read with Section 13(1)(d) of the Act and the accused pleaded not guilty for the said charges. The prosecution in order to establish the said charges examined P.Ws.1 to 8 and got marked Exs.P.1 to P.11 and M.Os.1 to 8. The lower court after taking into consideration of both oral and documentary evidence, found the accused guilty for the offence under Sections 7,11 & 13(2) read with Section 13(1)(d) of the Act and sentenced him to under go rigorous imprisonment for one year for the said charge under Section 7 of the Act and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for one month and also sentenced to undergo rigorous imprisonment for two years for the charge under section 13(1)(d) punishable under Section 13(2) of the Act and to pay a fine of Rs.200/-. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point that arises for consideration is whether the prosecution could able to establish the offence under Sections 7,11 & 13(2) read with Section 13(1)(d) of the Act against the accused beyond reasonable doubt? The learned counsel for the appellant has pleaded that the prosecution has failed to establish that the accused officer had any part to play either for issuing of certified copy of pahani or patta of certified copy, in view of the material on record that the accused already implemented the mutation register in pursuance of the order passed by the R.D.O on 17.11.1992 and for issuance of Pahanies, the Record Assistant has to obtain orders from the M.R.O and prepare the pahani copies and obtain signature of the Head Assistant and issue the same to the concerned party. The next contention raised by the learned counsel for the appellant is that the prosecution is not certain whether the defacto- complainant has sought certified copies of pahanies or certified copies of the patta in view of the contrary evidence placed on record. The next question raised by the learned counsel for the appellant is that the prosecution has failed to establish that the accused has demanded or accepted the illegal gratification for doing any official favour. As the defacto-complainant is no more and P.W.3 is the accompanying witnesses has turned hostile to the prosecution and the P.Ws.4 and 7 constituting the trap party members have stated that they have not seen the accused receiving the money from the complainant. Even though the accused officer and the complainant came out of the office two which was observed by the trap party and the complainant approached them and asked them whether he has to pay the money when the accused officer is promising to issue certified copies on 26.2.1993. With regard to the role of the accused officer in issuing the certified copies of pahanies and patta, the learned Special Sessions Judge has mainly relied upon Ex.P.4 which is the post trap proceedings. Wherein it was mentioned that the complainant submitted a claim petition on 2.2.1993 which was acknowledge by M. Yellaiah who is the accused officer herein and he made an endorsement on the reverse of the application stating that the Survey No.112 corrected as 9 guntas and initialled. R.O.R register Form No.1 at survey No.112, M. Yellaiah made necessary corrections by entering complainant’s name at column No.7 and 8. The Head Assistant stated that the concerned Mandal Revenue Officer had to attest his signature for each survey number. But, there is no signature of Mandal Revenue Officer found from S.No.1 to 398 and the formalities for the issues of Pahanies found to be completed in all respects as per the RDO’s order and other corrections made by M. Yellaiah as per the Head Assistant version and in the last para of the said proceedings, it was mentioned that Sri P. Lakshmaiah, Mandal Revenue Officer is present in his office. Sri P. Lakshmaiah stated that Sri M. Yellaiah completed all formalities for issue of pahanies and opined that there is a deliberate delay in issuing the pahanies. The Mandal Revenue Officer further added that the Special ROR is the authority himself to prepare pahanies. Basing on the said averments made in Ex.P.4, the learned Special Judge has come to the conclusion that the accused officer who is R.O.I is the competent authority for preparing the pahanies. But the prosecution has examined P.W.1 L. Siva Kumar who was working as Junior Assistant in the office of Mandal Revenue Office, Raikur from 1993 and according to him on 27.11.1992 A. Nagalingam came to his office and gave an application for issuance of certified copy of pahani and they issued certified copy in the first week of December, 1992. While taking certified copy of pahani he requested to issue patta certificates in his name with regard to said land which is benami land, then he asked him to meet the AO who is working as Special R.I during that time. The prosecution has examined A. Narasimha Rao as P.W.2 who is the Head Assistant of the office of Mandal Revenue Officer and he stated in the cross-examination that it is the duty of the Special R.I i.e., A.O to maintain R.O.R. V.A.O has to prepare the pahani. One has to give the application to the MRO for issuance of pahani, then MRO directs the record keeper to put up a note regarding the availability of the document. If the document is available MRO directs the record keeper to issue certified copy. Then record keeper after preparing certified copy obtained the signature of the head assistant and then issues certified copy of pahani, during the relevant time he was the Head Assistant. P.W.1 was the record keeper. Therefore, as per the evidence of P.W.2, the certified copy has to be prepared by the Record Keeper as per directions of M.R.O and obtain signature of the Head Assistant. P. Laxmaiah, Mandal Revenue Officer was examined as P.W.4 and in the cross-examination he has stated that as on the date when the ACB officials came to their office, the AO already implemented ownership right certificate in respect of J. Nagalingam lands. During that time P.W.1 was in-charge of record section and P.W.2 was the head assistant. The Junior Assistant in the office has to put up the file with regard to issuance of certified copy and then the head assistant has to examine the records and put up the file before the MRO who issues the certified copies of the pahanies. Therefore, the averments made in Ex.P.4 with regard to statement of P. Laxmaiah stated that the said ROI is the authority for preparing the pahanies was differed by the said P. Laxmaiah when he gave evidence before the lower court as P.W.5. Therefore, from the evidence of P.Ws.1,2 and 5, it is evident that the accused officer who is working as Special Revenue Inspector of R.O.R is not the person who has prepared or issued the certified copies of Pahanies and as per the said evidence, it is established that the accused officer has already implemented the ownership rights in the ROR as per the orders passed by R.D.O. Therefore, the finding of the lower court in that regard is not correct. With regard to the second aspect whether the complainant has sought for issuance of certified copy of pahanies or certified copy of the patta, the lower court has observed that the certified copies of patta was already issued to him on 17.11.1992 by the R.D.O and infact he has annexed that the patta certificate to the application submitted to the M.R.O office for the issue of certified copy of pahani, that too when in the earlier pahani subsequent to the issuance of the patta certificate dated 17.11.1992, lesser extent was shown as 0.05 guntas instead of 0.09 guntas of land and that constrained him to approach the MRO office with the said application. Even, the non-seizure of the application made by the defacto-complainant under these circumstances, hardly makes any difference and, therefore, held that the statement made by the defence counsel has no substance and hence rejected the same. With regard to the defacto-complainant applying for certified copy of the patta or certified copy of pahani in the complaint Ex.P.11, it is mentioned that when he met M. Yellaiah, M.R.O of Ramachandrapuram twice i.e., 15.2.1993 and 12.3.1993 and requested him to be furnished a copy of patta document to him, for that, he demanded bribe of Rs.500/- from him. Then he requested him a lot at last he reduced the amount of bribe to Rs.200/- and he further directed him to pay on 12.3.1993 and that whenever he pays the said amount to him then only he would release the patta document. Therefore, from the above complaint, it is clear that the defacto-complainant is only asking for patta certificate. Whereas P.W.1 who is working as Record Assistant at that time has also stated that A. Nagalingam came to his office and gave an application for issuance of certified copy of pahani and then they issued certified copy in the first week of December, 1992. While taking certified copy of pahani he requested to issue patta certificates in his name with regard to said land which is benami land, then he asked him to meet the AO who is working as Special RI during that time. Therefore, the version stating in Ex.P.1 was supported by the evidence of P.W.1, but whereas in Ex.P.4 it was mentioned that M.R.I i.e., the accused officer has demanded Rs.200/- for issuance of pahanies to the complainant. But, according to charge sheet, patta certificate was already issued on 17.11.1992 and he has applied for certified copies of pahanies for 9 guntas of land. Therefore, the factum of the defacto-complainant applying for the certified copies of pahanies was not established by the prosecution. More particularly in the absence of seizure of the applications alleged to have been made by the defacto-complainant for obtaining the said certified copies. With regard to the demand and acceptance, the learned counsel for the appellant has pleaded that as the defacto- complainant was not examined as he is no more as on the date of trial and P.W.3 has turned hostile, the prosecution could not able to establish the demand and acceptance of money by the accused officer and in the absence of the same, the prosecution is not entitled to draw a presumption under Section 20 of the Act and in support of his contention, he relied upon a decision rendered in P. Venkateswarlu v. State of A.P[1] wherein Single Judge of this Court has held: “Due to non examination of the complainant, the complaint cannot be accepted in evidence and that cannot be a ground to throw out the case of the prosecution. If there is any evidence establishing that the accused has accepted the illegal gratification as defined under Section 7 of the Act, definitely, this Court can hold that the appellant accused is guilty of the said offences and thereby examined the shadow witnesses P.W1 and found that the said evidence of the shadow witness is not truthful and thereby held that the accused has not committed the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and thereby allowed the appeal.” The next decision relied upon by the appellant is rendered in A. Subair v. State of Kerala[2] wherein the Supreme Court has held: “It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration. Further held that mere recovery of currency notes denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence.” Therefore, in view of the above said decision, it has to be examined whether there is sufficient proof of demand and acceptance of the bribe by the accused officer. Admittedly the defacto-complainant is no more by the date of commencement of trial and the only witness who accompanied the defacto-complainant at the time of payment of money to the accused officer is P.W.3 who has turned hostile to the prosecution. Then the only evidence available on record with regard to the acceptance of illegal gratification by the accused officer is the mediator P.W.4 and the Investigating Officer P.W.7. According to P.W.4, he drafted the pre-trap proceedings and by the time it was completed it was 2.55 p.m. P.W.3 and Nagalingam were asked to go on a two wheeler and the trap party members followed in a jeep. About 60 or 70 yards from the office of the MRO, they stopped the vehicle. By the time they reached there it was 3.10 p.m. P.W.3 and Nagalingam went inside the office. Within 2 or 3 minutes P.W.3 Nagalingam and another person came out and then P.W.3 Nagalingam spoke with that person and that three persons went inside the office. P.W.3 and Nagalingam came to them and informed them that the accused officer was demanding money and asking them to give the money and that he will give the money as demanded by the accused. Then again PW.3 and Nagalingam went inside the office. After some time P.W.3 and Nagalingam and another person came out of the office. After talking some time the 3rd person went inside the office. P.W.3 gave pre-arrange signal and after that the trap party members went inside the office and they found head clerk in his seat and by his side the MRI was sitting on the stool. DSP introduced them to the head clerk. Then the Had clerk revealed his identity. Then MRI also introduced himself to them. The accused present in the court hall is the very same MRI. DSP got prepared sodium carbonate solution in glass tumblers and then on the instruction of the DSP, accused rinsed his both hands fingers in the 2 glass tumblers separately and then solution in both the glasses gave positive result. When DSP asked the accused about the tainted currency notes he took out the tainted currency notes from his right side pant pocket and kept them on the table and when they verified the numbers of those notes with the numbers noted in the pre trap proceedings the same were found tallied. In the cross examination he has stated that the complainant accompanying witness and another person were visible to the trap party when they came out of the office on two occasions. While entering into the inside the office of the accused they did not ask the complainant to whom he gave the bribe amount. Therefore, even though P.W.4 has witnessed the accused, P.W.3 and other persons came out of the office, they did not witness the complainant giving money to the said person. P.W.7 has also stated in his chief-examination about the complainant approaching him after meeting the said person in front of the office and asked him whether he has to pay the said amount as demanded by the accused officer as he promised to give the pahani on 26.3.1993 and he instructed him to pay the bribe amount as demanded to the complainant and according to him, the complainant entered into the office at 3.25 p.m the accompanying witness came out and gave prearranged signal. In the cross-examination he has specifically stated that the complainant, accompanying witness and the accused came out of the office twice and visible to the trap party. The trap party did not observe the complainant giving the tainted currency notes to the accused. The tainted currency notes passed on the accused by the complainant in the open place in front of the MRO office as pr the post trap proceedings. Therefore, even though it was mentioned in Ex.P.4 that the currency was given to the accused by the complainant in open place and the said place is visible to the trap party, they could not observe about the payment of money by the complainant to the accused officer. Therefore, the circumstances could not establish the complainant paying the tainted money to the accused officer. But the learned Special Judge has only relied upon the evidence of P.W.2 as the circumstantial evidence to establish the demand and acceptance of the amount by the accused officer. P.W.2 is the Head Assistant has stated that on 23.3.1993 he came to their office at about 1.00 p.m from Sangareddy only and he sat on the stool by the side of his seat. Then Nagalingam came thee and he asked the accused to attend the work of the Nagalingam and then Nagalingam and accused office went outside, about half and hour or one hour later accused came again and sat on the stool by the side of his seat and then ACB officials came to the accused and they also enquired him about his identity. ACB officials also examined and recorded his statement. Therefore, the said evidence of P.W.2 only establishes about Nagalingam, complainant approaching the accused officer and accused officer going out of the office and returning back after half an hour to one hour. Simple because the accused officer met the complainant on that day, he cannot be presumed that the complainant has paid the illegal gratification to the accused officer in the absence of any direct evidence and it cannot be circumstantial evidence to treat the acceptance of the illegal gratification by the accused officer. With regard to the acceptance of the illegal gratification, the only evidence available is the trap proceedings conducted by P.Ws.4 and 7 i.e., conducting of the sodium carbonate test and found it to be getting positive result and recovery of the tainted amount of Rs.200/- from the possession of the accused. In the decision reported in A. Subair (2 supra), the Apex Court has categorically held that mere recovery of currency notes is not sufficient to prove the demand and acceptance of the bribe amount in the absence of any evidence produced by the prosecution in that regard. The learned counsel for the appellant has relied upon another decision rendered in Suraj Mal v. The State (Delhi Administration)[3] wherein it was held: “Mere recovery of 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 learned Special Sessions Judge has mainly relied upon that the accused has not taken any specific plea of defence with regard to the recovery of money from his possession and therefore he has taken the same as one of the circumstances that the accused has received the money as illegal gratification. Admittedly, in the present case, the accused officer has not put forth any defence theory by making suggestion to the mediator P.W.4 or trap laying officer P.W.7 or not explained any thing when he was examined under Section 313 Cr.P.C or submitted any written submission in support of his defence. The mere absence of taking defence by the accused cannot be presumed to be the acceptance of illegal gratification. As the burden is on the prosecution to establish the charge beyond reasonable doubt then only the burden shifts on the accused to establish his innocence. Therefore, in the above circumstances, the prosecution could not able to establish the demand and acceptance of the illegal gratification by the accused officer. The learned Special Judge tried to establish the charge against the accused by referring the various decisions, but the factual position clearly shows that the prosecution could not able to establish the demand and acceptance of the bribe by the accused officer. The other circumstances which probablise failure on the part of the prosecution is that the accused officer is not the proper person for issuance of the certified copy of the pahanies as on the date of demand of illegal gratification. Thus, the finding of the lower court that the prosecution has successfully proved the charges under Sections 7, 11 & 13(2) read with Section 13(1)(d) of the Act beyond reasonable doubt is not correct. Hence, the said finding of the lower court is liable to be set aside. In the result, the appeal is allowed and the conviction and sentence passed by the Principal Special Judge for SPE & ACB Cases-cum-IV Additional Chief Judge, City Civil Court, Hyderabad on 30.09.2004 in C.C.No.6 of 1994 is hereby set aside and the accused is acquitted. _____________________ P.DURGA PRASADJ. Date:11.02.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2171 of 2004 Date:11.02.2011 Gk. [1] 2006(2) ALD (Crl.) 849 (AP) [2] 2010(1) ALD (Crl.) 497 (SC) [3] AIR 1979 Supreme Court 1408