*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRIMINAL APPEAL NO.306 OF 2007 % 02-08-2010 #P. Ranga Reddy ….petitioner Vs. $ State rep. By the Spl. Public Prosecutor for ACB …. Respondent !Counsel for the Petitioner : Sri C. Raghu Counsel for the 1st Respondent: Public Prosecutor Counsel for the respondent: Spl. Public Prosecutor for ACB <Gist : >Head Note: ? Cases referred: 1.2009 TLPRE 871 2. 2009 (2) ALT (Crl.) 380 (SC) 3. AIR 2010 Supreme Court Cases 1589 HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.306 OF 2007 DATE:02.08.2010 Between: P. Ranga Reddy …… Petitioner. And: State of AP., rep. by its PP …..Respondent. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.306 OF 2007 JUDGMENT: 1. The 2nd accused (A-2) is the appellant. He was convicted by the Additional Special Judge for SPE and ACB Cases, Hyderabad by judgment dated 26.02.2007 in C.C.No.2 of 2004 for the offence under Section 7/13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and was sentenced to Rigorous Imprisonment for 6 months and pay fine of Rs.500/-. 2. The appellant/A-2 was working as Superintendent in the office of M.P.D.O, Kolimigundla, Kurnool District. A-1 was the then Mandal Parishad Development Officer, Kolimigundla Mandal. After filing the case in the lower court, A-1 died and so the case against A-1 stood abated. A-2 alone went for trial in the lower court. P.Ws.1 and 2 were nominated as Convenors by the Village Committees for execution of community works in their respective villages of Yerragudi and Thimmanayunipeta at the estimated cost of Rs.1,50,000/- and Rs.75,000/- respectively. It is alleged that on 16.07.2002 when P.Ws.1 and 2 approached A-1 and handed over bills and ‘M’ books for issue of cheques for the balance amount of Rs.55,000/- to P.W.1 and Rs.27,487/- to P.W.2, A-1 demanded illegal gratification of Rs.2,500/- from each of them for passing bills and to issue cheques and that on bargaining, A-1 agreed to receive Rs.1,500/- each from P.Ws.1 and 2 and that A-2 also demanded Rs.500/- from P.W.1 for processing the bill for issue of cheque to P.W.1 and that in unavoidable circumstances, P.Ws.1 and 2 agreed to pay demanded bribes to A-1 and A-2. Unwilling to pay the bribe to A-1 and A-2, P.W.1 gave Ex.P-1 written report to P.W.10 on 18.07.2002. It is alleged that on 19.07.2002 at 05.15 p.m P.Ws.1 and 2 paid Rs.1,500/- each to A-1 who kept the same in his shirt pocket and directed A-2 to deliver the cheques and that A-2 called P.Ws.1 and 2 to his office and accepted bribe of Rs.500/- from P.W.1 and kept the same in his right side pant pocket and delivered the cheques to P.Ws.1 and 2 respectively. Immediately the raid party consisting of P.Ws.3 and 10 and others entered the scene and caught A-1 and A-2 red-handed. 3. The lower court framed charges under Sections 7 and 13(1) (d)/13(2) of the Act against A-2 who pleaded not guilty of the charges. After trial, the lower court found A-2 not guilty of the offence under Section 13(1)(d)/13(2) of the Act, but found him guilty of the offence under Sections 7/13(2) of the Act; and passed the above said conviction and sentence against A-2. 4. It is contended by the appellant’s counsel that having found A-2 not guilty of the offence under Section 13(1)(d) of the Act for want of evidence, the lower court should have found A-2 not guilty under Section 7 of the Act also as there is no material to show that A-2 demanded bribe of Rs.500/- from P.W.1 and accepted the same. The lower court based its conclusion on evidence of P.Ws.3 and 10 with the aid of presumption contained under Section 20 of the Act. 5. P.W.1 who is the decoy witness turned hostile to the prosecution. Though he spoke in favour of prosecution in so far as dead accused is concerned, he did not speak any thing in so far as live accused is concerned. He says that at the insistence of P.W.10, he again went into the office and offered cash of Rs.500/- to A-2 and that A-2 refused to receive the said amount and that when he came out and informed the same to P.W.10, he again asked him to go and pay the said amount to A- 2 and that when he went for the third time A-2 was collecting some files from almirah and that he kept the amount of Rs.500/- into his pant pocket and that A-2 asked him to take back the said amount and that he asked A-2 to have the said amount as hand loan and that the A.C.B officials rushed into the office and caught hold of A-1 and A-2. P.W.3 and P.W.10 spoke to recovery of M.O.8 cash of Rs.500/- from A-2 and about hands and pant pocket of A-2 tuning pink when they were dipped in sodium carbonate solution. Ex.P-15 post trap proceedings reveal all the said facts spoken to by P.Ws.3 and 10. As per Ex.P-15 post trap proceedings, A-2 did not give any spontaneous explanation for possession of M.O.8 tainted cash in his pocket and sodium carbonate solution turning pink when his hand was dipped in it. 6. It is contended by the appellant’s counsel that in the absence of proof of demand and acceptance of M.O.8 cash by A-2 and also in view of evidence of P.W.1, the lower court should have come to the conclusion that there was no demand much less acceptance of bribe by A-2. When both P.Ws.1 and 2 went to the same office for obtaining their cheques, it is not known why A-2 is stated to have demanded P.W.1 alone for bribe of Rs.500/- and as to why A-2 did not demand similar bribe from P.W.2, even though A-2 had to process files for issue of cheques to both P.Ws.1 and A-2. It is further contended by the appellant’s counsel that the lower court having held that offence under Section 13(1)(d) of the Act is not proved, as a necessary corollary for the same, the lower court should have also found that offence under Section 7 of the Act is also not proved. 7. In State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede[1] , the Supreme court observed: “For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt.” In V.Venkata Subbarao v. State[2], the Supreme Court held: “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 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.” In Banarsi Dass v. State of Haryana[3] the Supreme Court reiterated as follows: “Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption.” 8. Thus, in view of the above pronouncements of the Supreme Court, mere recovery of tainted amount from the accused cannot attract presumption under Section 20 of the Act. It is for the prosecution to prove demand as well as acceptance of the illegal gratification; and on such proof of the statutory facts alone, presumption under Section 20 comes into operation; and thereafter it would be for the accused to rebut the said presumption by evidence or circumstances. In the case on hand, the prosecution thoroughly failed to prove demand much less acceptance of tainted amount by A-2. Therefore, the lower court erred in finding A-2 guilty of offence punishable under Section 7 of the Act. 9. In the result, the appeal is allowed setting aside the conviction and the sentence passed by the lower court against the appellant/A-2 and acquitting him. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:02.08.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL NO.306 OF 2007 Date: 02.08.2010 Gk. [1] 2009 TLPRE 871 [2] 2009 (2) ALT (Crl.) 380 (SC) [3] AIR 2010 Supreme Court Cases 1589