IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FOURTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.457 OF 2003 Between: State: Rep. by Inspector of Police, A.C.B., Vizianagaram ..... Appellant/Complainant AND Borra Nookaraju ..... Respondent/Accused Officer The Court made the following: JUDGMENT: The Criminal Appeal, under Section 378 (1) & (3) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 02.11.2002, in C.C.No.17 of 1998, on the file of the learned Special Judge for A.C.B. Cases, Visakhapatnam, whereunder and whereby the 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 acquitted. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: The Accused Officer was working as Forest Guard, Vizianagaram District, as on the date of trap. He was looking after the Reserve Forest and supposed to detect the offences in the Reserve Forest of Andhra Beat under his jurisdiction. P.W.1 is a native of Badevalasa village and was doing bamboo business by purchasing the bamboo from the tribal people at weekly shandies and selling the same to the public at Cheepurupalli and other villages for profit. P.W.3 is also a native of Badevalasa village and was doing the same business. About one month prior to 13.05.1997, P.Ws.1 and 3 went to the shandies, purchased bamboo and were bringing the bamboo on their respective bullock carts. On the way, the Accused Officer stopped the bullock carts of P.Ws.1 and 3 loaded with bamboo and demanded to pay bribe of Rs.1,500/- for each cart and threatened that he would seize the carts and register a case against P.Ws.1 and 3 if the demanded amount was not paid. Then, P.W.1 requested that he would pay whatever amount that was required to be paid to the Government in that regard. Without heeding to the request of P.W.1, the Accused Officer detained the carts of P.Ws.1 and 3 for one day. P.Ws.1 and 3 went to their village and brought Rs.1,500/- each and paid to the Accused Officer on 24.04.1997. On receipt of the same, the Accused Officer gave them compounding fee receipts for Rs.1,000/- each and thus, accepted the remaining amount of Rs.1,000/- as bribe. Again, the bullock carts of P.Ws.1 and 3 loaded with bamboo were stopped by the Accused Officer at Ratchabanda of Andhra village on 13.05.1997. The Accused Officer demanded P.W.1 that if P.W.1 wanted to do business, he had to pay bribe of Rs.225/- per cart, in which event, no fee needed to be paid to the Government. The Accused Officer also threatened P.W.1 that if he failed to pay the demanded amounts of Rs.225/- per cart, he would seize the carts and foist a case against P.Ws.1 and 3. P.W.1, though unwilling to pay bribe amount, being afraid that the carts and cattle will be spoiled, he went to the Accused Officer on 13.05.1997 and paid him an amount of Rs.150/-. Then, the Accused Officer demanded P.W.1 to pay the balance bribe amount of Rs.300/- on 15.05.1997 wherever he is available. Then, P.W.1 reluctantly agreed to pay the bribe and lodged a complaint before P.W.7-Deputy Superintendent of Police, Anti Corruption Bureau (for short, “A.C.B.”), Vizianagaram, on 13.05.1997. P.W.7, who is the Trap Laying Officer, after observing all formalities, made arrangements to trap the Accused Officer. Thereafter, the Accused Officer was successfully trapped by A.C.B. on 15.05.1997 when he demanded and accepted bribe amount of Rs.300/- from P.W.1 in the presence of accompanying witness P.W.2. The Sodium Carbonate Solution Test conducted on the fingers of both hands of the Accused Officer and on the inner lining of his shirt pocket, gave positive results. The tainted currency notes were recovered from the Accused Officer on his production. After obtaining Ex.P12- Sanction Order from the competent authority, the charge sheet was filed. 3. The learned Special Judge for ACB Cases, Visakhapatnam, framed the following charges against the accused. “FIRSTLY: That you (Borra Nookaraju), being a Public Servant i.e. Forest Guard, Andra Beat, Mentada Mandal of Vizianagaram District, on or about 15th day of May, 1997 at about 9.50 A.M. at your residence situated in Gajapathinagaram, accepted or obtained a sum of Rs.300/- (Rupees three hundred only), being the balance bribe amount demanded by you on 13.5.97 from one Tadi Lakshmana and Pathiwada Ramarao at Ratchbanda of Andra village while they were bringing the bamboo on two bullock carts by threatening them that you would seize the carts and foist a case and also stating that no Government fee was required to pay in case of payment of the demanded bribe amount, from the said Tadi Lakshmana, a resident of Badevalasa village for yourself as gratification other than legal remuneration as a motive or reward for showing official favour in the matter of not registering a case against them, in the exercise of your official functions and thereby committed an offence punishable Under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance. SECONDLY: That you (Borra Nookaraju) at the same time and place stated supra, by means of corrupt or illegal means or by otherwise abusing your position as such public servant, obtained for yourself pecuniary advantage to an extent of Rs.300/- from Tadi Lakshmana, a resident of Badevalasa village, Mentada Mandal of Vizianagaram District and thereby committed an offence specified Under Section 13 (1) (d) of the Prevention of Corruption Act, 1988 punishable Under Section 13 (2) of that Act and within my cognizance.” When the charges were read over and explained to the Accused Officer in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 7 and got marked Exs.P1 to P17, besides the 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 circumstances found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the Accused Officer, D.W.1 is examined and Exs.D1 to D6 were marked. 6. The trial Court, after considering the evidence on record, found that P.W.1 was not a wholly reliable witness and that except his oral testimony, there is no other evidence with regard to the demand and acceptance of bribe, and accordingly, acquitted the accused. Challenging the same, the present Criminal Appeal is filed by the State. 7. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the Accused Officer for the charges under Sections 7 and 13 (1) (d) read with 13 (2) of the Act and whether the judgment of the trial Court is correct, legal and proper? 8. Sri V. Ravi Kiran Rao, learned Standing Counsel appearing for the appellant herein contended that though P.Ws.2 and 3 turned hostile, the evidence of P.W.1 is very clear that the Accused Officer demanded illegal gratification other than legal remuneration as a motive or reward for showing an official favour; that there is no other reason for P.W.1 to foist a false case of this nature against the Accused Officer; that there is no need for the Investigating Agency to seize the forest produce which was allegedly seized by the Accused Officer; that when the prosecution proved its case for the offence punishable under Section 7 of the Act, the presumption under Section 20 of the Act would come into play; that when the right hand fingers of the Accused Officer were subjected to Sodium Carbonate Solution Test, it gave positive result; that similarly, when the inner lining of the shirt pocket of the Accused Officer, when subjected to Sodium Carbonate Solution Test, gave positive result, thereby suggesting that the Accused Officer voluntarily accepted the bribe from P.W.1; that the evidence of P.W.7-Trap Laying Officer coupled with Exs.P9 and P10, which are the first and second Mediators’ Reports, dated 15.05.1997, would clearly go to show that the Accused Officer received the bribe amount; but, these aspects have not been considered by the trial Court in right perspective and hence, he prays to set aside the impugned order or acquittal and convict the respondent/accused. 9. None appears for the respondent and no representation was on behalf of the Respondent. 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. 11. 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. 12. There cannot be any dispute that in dealing with the 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. On this aspect, it is pertinent to refer to a decision reported in HARBANS SINGH AND ANOTHER V. THE STATE OF PUNJAB[1], wherein it is held thus: “The question as regards the correct principles to be applied by a Court hearing an appeal against acquittal of a person has engaged the attention of this Court from the very beginning. In many cases, especially the earlier ones, the Court has in laying down such principles emphasized the necessity of interference with an order of acquittal being based only on compelling and substantial reasons and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal. The use of the words ‘compelling reasons’ embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words ‘compelling reasons’. In later years the Court has often avoided emphasis on ‘compelling reasons’ but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a Court must examine not only question of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied, after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable.” 13. The entire case rests upon the solitary testimony of P.W.1. P.Ws.2 to 4 did not support the case of the prosecution. They were declared hostile. Simply because they were declared hostile by the prosecution, their evidence would not efface from the record. Such part of their testimony, which inspires confidence, can be used to corroborate the evidence, if any available on record. In view of the fact that the entire case rests upon the solitary testimony of P.W.1, the law is well settled that in such case, it must be unimpeachable, true, trustworthy and reliable. Once, the solitary witness is put in the category of wholly reliable, then there is no difficulty in accepting the same and to base a conviction thereon. On this aspect, it is pertinent to refer to a decision reported in VADIVELU THEVER V. STATE OF MADRAS[2], 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.” Bearing the above principles in mind, it is to be seen whether the evidence of P.W.1 can be put in the category of wholly reliable. 14. P.W.1 was doing business in bamboo. He used to purchase bamboo from the tribal people and sell the same at weekly shandies in Andhra village. The Accused Officer was working as a Forest Guard, Vizianagaram District. Prior to the trap, P.Ws.1 and 3 loaded the bamboo in their respective bullock carts and they were proceeding towards Ratchabanda of Andhra village. The Accused Officer stopped them and threatened that he would seize the carts loaded with bamboo unless they paid Rs.1,500/- each. As the amount was not available, they both went to the village and secured Rs.3,000/- by borrowing the amount from villagers, reached the house of the Accused Officer and paid the same. The Accused Officer issued receipts Exs.P2 and P3 for Rs.1,000/- each. When P.W.1 questioned, the Accused Officer as to why he issued the receipt of Rs.1,000/- each having received Rs.1,500/- each, the Accused Officer stated that he was not concerned and asked him to go away. 20 or 25 days thereafter, they were again loaded the bamboo in their carts and were proceeding towards Ratchabanda of Andhra village. Then the Accused Officer demanded Rs.300/- each. When both of them pleaded that they would not pay the amount, the Accused Officer stated that he would leave them provided they paid Rs.225/- each to him. At that time, as P.Ws.1 and 3 were having only Rs.75/- each, they paid the said amount to the Accused Officer, who received the same and asked them to pay the balance of Rs.300/-. Not willing to pay that amount, P.W.1 lodged Ex.P1-complaint before P.W.7. P.W.7 secured the presence of P.W.5 and drafted Ex.P9-Pre-Trap Proceedings duly noting down the currency note numbers and also applying Phenolphthalein powder. As per the directions of P.W.7, P.Ws.1 and 3 were directed to hand over the money when the Accused Officer demanded the money. Accordingly, they both went to the house of the Accused Officer. The Accused Officer was not present in his house, and came there after some time. On demand made by the Accused Officer, P.w.1 paid that amount M.O.5-tainted currency notes. The Accused Officer received the same with his right hand and kept in the right side shirt pocket. On receipt of pre-arranged signal, P.W.7 along with P.W.5 rushed there and conducted the Sodium Carbonate Solution test on the right hand fingers as well as the inner lining of the shirt pocket of the Accused Officer. Both turned into pink colour. Numbers of the currency notes seized from the possession of the Accused Officer were tallying with the numbers of the currency notes as noted in Ex.P9. Thereafter, Ex.P10-Proceedings were drafted. 15. With regard to the demand, there is no other evidence except the solitary testimony of P.W.1. It is an admitted case that P.W.1 was purchasing the bamboo from the tribal people and he did not have any license to sell the bamboo. He was doing the said business three weeks prior to the incident. P.W.1 knows that if a bamboo was seized by the Forest officials, they have to pay the required compound fee to the Government. When P.Ws.1 and 3 were questioned by the Accused Officer in the first instance, they both paid Rs.3,000/-. For that, the Accused Officer said to have issued Exs.P2 an P3- receipts for Rs.1,000/- each. So from the evidence of P.W.1, it is clear that he was transporting the forest produce though he knew very well that a license was required for transporting the bamboo. Admittedly, he had not obtained any license. The contention that he paid Rs.2,000/- to the Accused Officer at his house under Exs.P2 and P3, found to be false in view of the fact that Exs.P2 and P3 were not issued by the Accused Officer. So, the statement of P.W.1 that he paid Rs.2,000/- under Exs.P2 and P3 at the residence of the Accused Officer is nothing but false. On second occasion also, P.Ws.1 and 3 were transporting the bamboo. Therefore, the trial Court came to the conclusion that the Accused Officer simply objected P.W.1 who was carrying on illegal business of purchase and sale of bamboo and he wanted to get over the Accused Officer from that area so that he would carry on the business without any hindrance. That finding cannot be shown to be false. 16. No doubt, P.W.1 has no enmity or grouse against the Accused Officer. But, at the same time, there is a possibility for P.W.1 to entertain a grouse against the Accused Officer because he was objecting for transportation of bamboo. Ex.P1, which is the earliest report given to P.W.7 and Ex.P17- statement under Section 164 Cr.P.C. recorded by the Magistrate would clearly go to show that P.W.1 was in the habit of purchasing bamboos @ Rs.200/- for 100 Nos., from tribal people in weekly shandies and was selling the same for profit. On the date of seizure of the bamboo, the value of the bamboo was about Rs.600/-. Therefore, the alleged demand of Rs.450/- for each cart appears to be improbable and unbelievable. After selling the bamboo valued at Rs.600/-, they may get Rs.100/- or Rs.200/- towards profit and in such circumstances, it is most unlikely that the Accused Officer would have demanded nearly the value of the bamboo as a gratification other than legal remuneration as a reward or motive to show an official favour in discharge of his official duties. 17. The allegation is that on 13.05.1997 while P.Ws.1 and 3 were carrying the bamboo in their two bullock carts, the Accused Officer demanded Rs.1,500/- each towards bribe. P.Ws.1 and 3 went to the village and collected Rs.3,000/- and paid to the Accused Officer at his residence. But the Accused Officer gave two receipts for Rs.1,000/- each. On the next occasion, while they were carrying on the bamboo worth about Rs.600/-, it is alleged that the Accused Officer demanded Rs.450/-. That appears to be false. P.W.1 stated in Ex.P17 that a part of bribe amount of Rs.150/- was paid at Puritipenta village but not at the spot as testified by P.W.1. Similarly, Ex.D3 contradiction shows that Rs.75/- each was paid to the Accused Officer at the house of the Accused Officer, whereas the evidence would go to show that the bribe amount was paid at the spot. So, therefore, these material contradictions would go to the root of the prosecution case with regard to the demand and acceptance 18. Admittedly, except the solitary testimony of P.W.1, there is no other evidence to show that the Accused Officer demanded illegal gratification as a motive or reward to show an official favour. P.W.2 who was admittedly present when the Accused Officer allegedly demanded money for showing an official favour did not support the case of the prosecution. He has given a complete go-by to his earlier version. Except marking his statement recorded by the police as in Ex.P5, nothing has been elicited to connect the Accused Officer with regard to the demand made by the Accused Officer to show an official favour. 19. There cannot be any dispute that the statements of witnesses recorded by the police during the course of investigation cannot be used for any other purpose except for contradicting the witnesses. Therefore, it is very difficult to place an implicit reliance on the solitary testimony of P.W.1 to arrive at a conclusion that the Accused Officer demanded Rs.450/- to allow P.Ws.1 and 3 to carry bamboo in their respective double bullock carts. When the evidence of P.W.1 is neither wholly reliable nor wholly unreliable, then his evidence requires corroboration. But, there is no such corroboration. 20. With regard to the recovery of M.O.5-tainted currency notes, the evidence of P.Ws.5 and 7 would clearly go to show that M.O.5 was seized from the shirt pocket of the Accused Officer. The right hand fingers and the inner lining of the shirt pocket of the Accused Officer when subjected to the Sodium Carbonate Solution Test, it turned into pink colour, thereby suggesting that the Accused Officer was found in the possession of the tainted currency notes. The numbers of currency notes seized from the possession of the Accused Officer were tallying with the numbers as mentioned in Ex.P9- Pre-Trap Proceedings. Though the Accused Officer stated that he received the amount towards loan, that is not substantiated with any evidence. But, mere recovery of the amount from the possession of the Accused Officer separated from the circumstances under which it is paid, it can be said that the Accused Officer has not committed an offence in view of the decision reported in C.M. GIRISH BABU V. CBI, COCHIN, HIGH COURT OF KERALA[3], wherein it is held thus: “In Suraj Mal v. State (Delhi Admn.)[4] 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 of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.” In view of the above decision, mere recovery of the tainted currency notes from the possession of the Accused Officer does not lead to any irresistible conclusion that the Accused Officer demanded and accepted the bribe amount from P.W.1. 21. The trial Court, after elaborate consideration of evidence on record, rightly acquitted the Accused Officer. None of the findings is shown to be perverse or incorrect. The findings are based upon the proper appreciation of evidence on record. There are no compelling or substantial reasons to interfere with the judgment under challenge. Therefore, there are no grounds to interfere with the same. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 22. In the result, the Criminal Appeal is dismissed confirming the judgment, dated 02.11.2002, in C.C.No.17 of 1998, on the file of the learned Special Judge for A.C.B. Cases, Visakhapatnam. _____________ (K.C.BHANU, J) Dated: 4th December, 2009. KL [1] A.I.R. 1962 S.C. 439 [2] 1957 SC 614 [3] (2009) 3 Supreme Court Cases 779 [4] (1979) 4 SCC 725 : 1980 SCC (Cri) 159