THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL APPEAL No.636 OF 2005 Dated:15.12.2009 Between: Puli Venkata Ramanaiah .. Appellant/Accused And The State of Andhra Pradesh, rep., by its Public Prosecutor (A.C.B.), High Court of Andhra Pradesh, Hyderabad .. Respondent/Complainant JUDGMENT: The conviction of the accused for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and the consequential sentences imposed on him are the subject matter of the present appeal which is filed at the instance of the accused. The District Inspector, Anti Corruption Bureau, Eluru Range, Eluru, charge sheeted the accused/appellant in Crime No.5/ACB- RC(T)-EWG/97, alleging that the accused was working as a Special Revenue Inspector (ROR) in the office of the Mandal Revenue Officer, Jangareddygudem, West Godavari District, and one Mullapudi Nagamani, sister of Sunkara Radha Krishna, owning Acs.5.00 gt., of land in R.S.No.218/19 and patta No.401 of Markandeyapuram within the jurisdiction of the Mandal Revenue Office, Jangareddygudem, lost her pattadar pass book. At her request, Sunkara Radha Krishna, her brother, submitted an application in the Mandal Revenue Office including copies of title deed of Nagamani and the accused demanded him to pay Rs.700/- as bribe for officially favouring him for issuance of a duplicate pattadar pass book. When Radha Krishna expressed his inability, the accused gave a concession of Rs.200/- and demanded the balance of Rs.500/-, only on payment of which the duplicate pattadar passbook signed by the Mandal Revenue Officer will be delivered. The amount was asked to be paid at the residence of the accused on 16.10.1997 and Nagamani and Radha Krishna, who were unwilling to give bribe, reported the matter to the Deputy Superintendent of Police, Anti Corruption Bureau, Eluru on 14.10.1997 at 6.00 p.m. After registration of the report, necessary action was taken to lay a trap and the accused was successfully trapped on 16.10.1997 at his office in the presence of Kamisetti Mallikarjuna Rao, a friend of Sunkara Radha Krishna, when the accused accepted Rs.500/- as illegal gratification from Radha Krishna. The test of Sodium Carbonate Solution conducted on the accused proved positive on the tainted currency notes, which were recovered from the hip pocket of the accused. The serial numbers of the tainted currency notes were tallied and the accused after his arrest was released on his personal surety. The State Government had accorded sanction to prosecute the accused in G.O.Ms.No.576, Revenue (Services-IV) Department, dated 04.08.1998. The accused was furnished with the copies of documents on his appearance and charges under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act were framed against him to which the accused pleaded not guilty. The prosecution examined PWs.1 to 9 and marked Exs.P1 to P15 and M.Os.1 to 8 during trial and the accused, while denying the incriminating circumstances appearing in the evidence against him during his examination under Section 313 Cr.P.C., further claimed that the amount was thrust in his hip pocket by PW.1, Sunkara Radha Krishna, in spite of his protest. The accused did not produce any defence evidence. The trial Court rendered the impugned judgment firstly noting the absence of any dispute about the status of the accused on the date of the incident as a public servant within the meaning of Section 2 (c) of the Prevention of Corruption Act. The trial Court also noted that Ex.P14, sanction order by the State Government, was valid. The trial Court then referred extensively to the oral and documentary evidence on record to conclude that the evidence of PWs.1 to 3, who turned hostile, cannot be totally ignored and it was of the view that PWs.1 and 3 were won over by the accused due to which they did not support the prosecution during their cross examination. Extensively referring to the precedential law cited before it, the trial Court opined that the evidence of PWs.1 and 3 is suffice to come to a conclusion that there was a demand and acceptance of bribe by the accused on 16.10.1997. The presumption under Section 20(1) of the Prevention of Corruption Act was also drawn in favour of the prosecution and the trial Court was of the firm view that with or without the presumption, the prosecution successfully proved the offences alleged. Consequently, it handed over the conviction and consequential sentence of rigorous imprisonment for a period of two years each and a fine of Rs.2,500/- each with a default sentence of simple imprisonment for a period of six months each. The accused challenges the said judgment, in this appeal, contending that the inconsistent evidence of PWs.1 to 3, who categorically admitted about the absence of any demand from the accused for any bribe, could not have formed the basis for any adverse presumption against the accused. The trial Court also noted that the other staff in the Mandal Revenue Office informed PWs.1 to 3 about the legal expenses required for obtaining a duplicate pattadar pass book. The statements of the witnesses recorded under Section 164 of the Code of Criminal Procedure could not have been relied on as the witnesses admitted that the contents thereof were at the dictation of the Anti Corruption Bureau people and PW.4 did not say that Exs.P1 and P4 were seized from the almirah of the accused. The evidence of PW.7 was not consistent with the documentary evidence and the amount received was for the purpose of compliance with Rule 31 read with Rule 26(12) of the Andhra Pradesh Rights in Land and Pattadar Pass Books Rules, 1971. The accused, for these and other reasons specified in the grounds of appeal, desired his conviction and sentences to be reversed. Sri P.V.Vidyasagar, learned counsel for the appellant, and Sri V.Ravi Kiran Rao, learned Special Public Prosecutor and Standing Counsel for Anti Corruption Bureau, are heard at length reiterating their respective contentions. The point for consideration is whether the prosecution proved the guilt of the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 beyond reasonable doubt? POINT:- Section 7 of the Prevention of Corruption Act, 1988 penalises a public servant taking gratification other than legal remuneration, in respect of an official act, as a motive or reward for doing or forbearing to do any official act etc. The legal remuneration was specifically defined as including all remuneration which a public servant is permitted by the Government or the organization which he serves, to accept. Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 punishes a public servant, who commits misconduct, if such public servant obtains for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position without any public interest. Sri P.V.Vidyasagar, learned counsel for the appellant, referred to C.M.Girish Babu V. C.B.I., Cochin, High Court of Kerala[1] to illuminate the manner in which charges under Sections 7 and 13(2) read with Section 13(1)(d) of the Act have to be assessed and appreciated. The Apex Court referred to the statutory presumption under Section 20 of the Prevention of Corruption Act, 1988 and its earlier decision in M. Narsinga Rao V. State of A.P.,[2] to lay down that the premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Gratification must be treated in the context to mean any payment for giving satisfaction to the public servant who received it. The Apex Court also pointed out that the accused can rebut even the statutory presumption under Section 20 of the Prevention of Corruption Act, either through cross examination of the witnesses, or by adducing reliable evidence and the burden of proof placed upon the accused in that regard was held to be not akin to that burden placed on the prosecution to prove the case beyond a reasonable doubt. V.D. Jhingan V. State of U.P.,[3] was referred to with approval that the onus of proof lying upon the accused in this regard is to prove his case by a preponderance of probability and as soon as he succeeds in doing so, the burden is shifted to the prosecution, which still has to discharge its original onus that never shifts i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. In that background, the Supreme Court reiterated its earlier view held in Suraj Mal V. State (Delhi Admn.)[4], that 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. 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, the mere recovery by itself cannot prove the charge of the prosecution against the accused. Learned counsel also relied on the decision of a learned Single Judge of this Court in Criminal Appeal No.457 of 2002, dated 22.06.2009, wherein charges under identical provisions against a public servant were under consideration. The learned Judge while noting that mere recovery of tainted amount from the possession of the accused by itself cannot be a ground to convict the accused as referred to in the above cited decision in C.M. Girish Babu’s case, and the earlier precedents on the aspect, concluded that unless there is evidence to show that the accused demanded any bribe amount for doing any official favour, the presumption under Section 20 of the Prevention of Corruption Act cannot be drawn. Learned counsel for the appellant also referred to State of Delhi V. Shri Ram Lohia[5], in which the Apex Court pointed out that an admission by a witness in a statement recorded under Section 164 of the Code of Criminal Procedure would not make the entire statement admissible and any part of it could not be used as a substantive evidence in the case. Learned counsel also relied on Dhaneshwar Thakur V. State[6] for the same proposition that a statement under Section 164 of the Code of Criminal Procedure cannot be used as a substantive piece of evidence. It was also laid down that where there are two inconsistent statements, one under Section 164 of the Code of Criminal Procedure and the other before the Sessions Court, the testimony has to be rejected outright in the absence of any independent corroboration. While the weight to be attached to the statements under Section 164 of the Code of Criminal Procedure was, thus, elucidated, in Satpal V. Delhi Administration[7] referred to by the learned Judge in the judgment in Criminal Appeal No.457 of 2002, the manner in which the evidence of hostile witnesses has to be appreciated was rendered. Such statements can be used or availed by the prosecution to support its case, but as a matter of prudence, it would be hazardous to allow the prosecution to do so. The Court below in such cases has to see whether their credit was substantially, if not wholly shaken with reference to the substantial contradictions with their previous statements. With these principles in the background, the facts, on hand, in the present case have to be appreciated. PW.2 is the person, who was the applicant for issuance of a duplicate pattadar pass book through her brother PW.1, and she, apart from signing Ex.P1 application for the purpose, was not a direct witness to any of the events that happened at the Mandal Revenue Office or in the interaction of PW.1 with any staff member, including the accused, of the Mandal Revenue Office. Though she claimed that she was unwilling to give any bribe when intimated by PW.1 about the demand of the Revenue Inspector, she did not know whether PW.1 spent any amount towards such a purpose. Though she stated about the demand being made by the accused Revenue Inspector in her chief examination, she admitted during her cross examination that what PW.1 informed was that they had to spend some amount towards office expenses and fees for getting a duplicate pattadar pass book as informed by the staff of the Mandal Revenue Office. She herself was unaware of the procedure for obtaining a duplicate pattadar pass book and she did not give any amount to PW.1 for obtaining such a duplicate pass book. She further stated that she did not give any police report about missing of the original pass book and did not affix her photo on Ex.P1, application. Her admission that PW.1 was financially poor and that he could not offer any bribe or arrange money towards any bribe by himself, while she did not know who was the Revenue Inspector at the relevant time, and her further admission that PW.1 informed her that the office staff demanded some amount towards expenses and fee but not the Revenue Inspector, make the alleged demand and acceptance by the accused open to suspicion. PW.1, who was the prime witness, according to the prosecution, of course, was faithful to the prosecution story in his chief examination and it is also true that in his statement under section 164 of the Code of Criminal Procedure, Ex.P3, he presented a similar version. But, during his cross examination, he had to admit that he does not know the procedure to get a duplicate pattadar pass book. He claimed that he did not give Ex.P1 to the Mandal Revenue Officer and he further claimed to have been informed by four or five members of the Mandal Revenue Office at the time of his visit on 13.10.1997 about the need to spend Rs.700/- in order to get a duplicate pattadar pass book, which he thought was towards a bribe. His version in the cross examination makes no reference to the presence or involvement of the accused in any such information or demand for any money and he stated that he gave the cash of Rs.500/- to the Revenue Inspector as demanded by the staff informing to keep the same towards expenses for issuance of a duplicate pattadar pass book. While admitting that photograph of PW.2 was not affixed on Ex.P1 application, PW.1 also stated that his statement before a Magistrate under Section 164 Code of Criminal Procedure was as per written version given to him by the Anti Corruption Bureau officials. Both PWs.1 and 2 denied resiling from their version due to any compromise with the accused and apart from the suggestions made to PWs.1 and 2 by the Special Public Prosecutor in this regard, there was no material on record to presume any such compromise between the accused and PWs.1 and 2. PW.3, a friend of PW.1, said to be a party to the entire sequence of events was also with the prosecution in his chief examination and his statement under Section 164 of the Code of Criminal Procedure before the Magistrate under Ex.P5. He was not present when Ex.P1 was presented by PW.1 in the Mandal Revenue Office. Even according to the chief examination and during his cross examination, he stated that even on 13.10.1997, when PW.1 had a talk at the Mandal Revenue Office, he was at a distance of three to four feet. PW.3 claimed to have been informed by PW.1 that the staff told him about the expenses for the issuance of a pattadar pass book. PW.3 also, of course, understood the expenses to be towards bribe, but he did not hear the conversation between the accused and PW.1, when Rs.500/- were given to the accused on 16.10.1997, and therefore, the claim of PW.1 that he gave the amount to the accused specifically informing him about the same being towards expenses for issuance of a pattadar pass book is not contradicted. Like PW.1, PW.3 also stated that whatever he stated in Ex.P5 was as per the written version given earlier by the officials of Anti Corruption Bureau. When PW.2 herself did not pay any amount for the purpose and when PW.1 on the information of the other staff members of the Mandal Revenue Office, gave the amount to the accused towards expenses and fees for issuance of a duplicate pattadar pass book, which claim was corroborated by PW.3, the element of bribery does not seem to exist in the transaction. The issuance of a duplicate pattadar pass book is governed by the statutory Rules framed under the Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971. The Rules under the 1971 Act provided under Rule 31 for an application for issuance of a duplicate in case of loss of an original pass book. Such an application should be along with the photograph of the applicant as per the said Rule 31 and Ex.P1 admittedly did not have any such photograph of PW.2. Sub Rule (1) of Rule 31 specifies that such a duplicate shall be issued by the Mandal Revenue Officer only after collecting the fee prescribed under Sub Rule (12) of Rule 26. Under Sub Rule (12) of Rule 26, the issuance of a pass book shall be at a rate to be fixed by the Commissioner. Therefore, for appropriately dealing with Ex.P1 application for issuance of a duplicate pattadar pass book to PW.2 by PW.1, the collection of the fee prescribed as per Sub Rule (12) of Rule 26 is a statutory pre-condition and if the staff of the Mandal Revenue Office or even the accused informed PW.1 about the need for payment of such amount, which they might have called as expenses or fee, the same can never be construed to be a demand for any illegal gratification. If so, from the evidence of PWs.1 to 3 read as a whole, it appears probable that on information of the other staff members of the Mandal Revenue Office about the expenses or fees for issuance of a duplicate pass book, PW.1 tendered the sum of Rs.500/- to the accused to fulfill the prescribed formalities and not towards any questionable purpose as demanded by the accused. The evidence of PW.4, who acted as a mediator for the proceedings, is of course not suspect in view of the independent nature of the evidence of the then Deputy Commercial Taxes Officer, Vuyyuru. But what all he stated about Ex.P2 complaint of PW.1 and the trap proceedings does not throw any light on the purpose for which the amount was handed over by PW.1 to the accused. It is seen from the material on record that even the accused did not deny PW.1 handing over a sum of Rs.500/- to him and the same being recovered from his possession by the officials of the Anti Corruption Bureau. What is in dispute is the purpose for which and the manner in which the payment was made. Therefore, even if the evidence of PW.4 were to be accepted, the same does not offend the probability arising from the evidence of PWs.1 to 3 about the money being paid towards legal expenses for obtaining a duplicate pattadar pass book. The evidence of PW.6 is about the sanction for prosecution of the accused by the Government. The evidence of PW.8 is about filing the charge sheet on completion of the investigation, which has no direct bearing on the questions in issue, while the evidence of the then Mandal Revenue Officer as PW.7 that no rule stipulated for collection of any fee for issuance of a duplicate pattadar pass book is apparently contrary to the statutory rules and of no significance. Apart from trying to state that collection of any amount from the applicant for issuance of duplicate pattadar pass book does not fall under the Rule, the evidence of PW.7 is also of no significance. Of course, he had to admit that no photo was affixed on Ex.P1 application and that there was no endorsement of sending Ex.P1 to the Inward Section by him. The evidence of PW.9, the investigating officer, about the various proceedings conducted by him, since Ex.P2 report is not based on any personal knowledge about the purpose for which PW.1 advanced the amount to the accused and PWs.1 and 3, were positive that they themselves took the information by the staff of the Mandal Revenue Office about the expenses and fees to be a demand for bribe for issuance of a duplicate pass book. Even PW.9 stated that the accused officer stated in his defence even at the earliest point of time that PW.1 paid the money in respect of the statutory fees or expenses with regard to the issuance of a duplicate pattadar pass book, though Ex.P8 proceedings did not contain the same. While the status of the accused or the legality of the sanction for prosecution is not in dispute, the conclusions of the trial Court about the truth of the proceedings conducted during the investigation since the report by PW.1 till the end of the trap are not factually in dispute. The trial Court brushed aside the hostility of PWs.1 to 3 firstly, with reference to the pendency of Ex.P1 application with the accused from 10.10.1997 to 16.10.1997 but when admittedly Ex.P1 application was not accompanied by the photograph of the applicant or with the prescribed fee for issuance of a duplicate pass book as per Rule 31 read with Rule 26(12) of the Statutory Rules, anything sinister cannot be presumed from the Revenue Inspector waiting for compliance with the statutory rules by the applicant or by any person representing him. The gap of six days between the presentation of the application and the trap is also not abnormal given the pace at which the papers in Government offices move. By not returning Ex.P1 application for non- compliance of the rules within the said six days, the accused was not shown to violate any rule of procedure, statutory or administrative. No presumption against the accused could have been drawn from such a circumstance. Similarly, though the evidence of hostile witnesses need not be discarded altogether as observed by the trial Court, the evidence of PWs.1 to 3 could not have been so dissected as done by the trial Court as to only accept the allegations of bribery and reject their version about the events that led to the payment of Rs.500/- to the accused. The mere suspicion of the trial Court about the possibility of PWs.1 to 3 having been won over by the accused could not have been a legal ground to convict him in respect of the alleged bribe, which was in fact in respect of compliance with the statutory formalities. In fact on the admitted absence of any photograph on Ex.P1 and the absence of payment of the required fee for acting upon it, the suggestions should have been considered more probable and as held by the Apex Court mere proof of recovery of the amount in trap proceedings will neither help the prosecution in having a statutory presumption under Section 20 of the Prevention of Corruption Act nor can itself be considered it as a proof of the guilt of the accused. The statements of PWs.1 and 3 under Section 164 of the Code of Criminal Procedure cannot be a substantive evidence and cannot be acted upon without independent corroboration, in view of their being contradicted by witnesses themselves. Even if the presumption under Section 20 of the Act were to be considered in favour of the prosecution, the preponderance of probabilities made out from the evidence of PWs.1 to 3 can be safely considered to have rebutted to such a presumption and consequently, the accused will be entitled to the benefit of reasonable doubt in respect of the offences with which he was charged. As the prosecution has to be, hence, concluded to have failed to establish the guilt of the accused, the impugned judgment has to be reversed and the conviction and sentences have to be set aside. Accordingly, the conviction and sentences of the accused in C.C.No.12 of 1998 on the file